Summary Calendar ----------------------- THOMAS LGLOVER v. City of Dallas

* 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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
February 1, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 06-10658
Summary Calendar
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THOMAS L GLOVER
Plaintiff - Appellant
v.
CITY OF DALLAS
Defendant - Appellee
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Appeal from the United States District Court for
the Northern District of Texas, Dallas
(No. 3:04-CV-917)
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
The district court entered summary judgment for the City of
Dallas in Thomas Glover’s Title VII lawsuit. Glover appeals. For
the following reasons, we AFFIRM the judgment of the district
court.
I. Factual & Procedural Background

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Glover filed this lawsuit on April 30, 2004. The complaint
does not specify counts, but avers that Glover “was denied equal
employment opportunities by Defendant and the Plaintiff was
discriminated and/or retaliated against by Defendant because of his
race, African-American.” The gravamen of Glover’s claim is that he
was not promoted to the rank of Lieutenant in the Dallas Police
Department because of his participation in investigations into
allegations of racial discrimination conducted by the Equal
Employment Opportunity Commission and the U.S. Department of
Justice and because of his activities as President of the Texas
Peace Officers Association.
Glover sought promotion in 1999 under a process that involved
a written examination and assessment exercises, in which the
assessors, all of whom held the rank of Lieutenant in police
departments across the United States and who were hired by a
private contractor, observed the exercises and rated each
candidate. The written examination accounted for 25% of the final
promotion score; the assessment accounted for 75%. Based solely on
his written examination results, Glover was ranked 5 out of 63
sergeants who passed the examination. Glover did not fare as well
in the assessment; with that score included his ranking dropped to
29 out of 60 sergeants who passed the written examination and
completed the assessment.
The City moved for summary judgment, which the district court
granted. The district court held that despite Glover’s assertions

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in his deposition and argument in his brief, Glover never pled a
due process claim. The district court therefore declined to
consider any due process argument. The district court then assumed
arguendo that Glover had demonstrated a prima facia case of
discrimination, but held that he had not presented any evidence
that tended to rebut the City’s proffered non-discriminatory, non-
retaliatory explanation for not promoting him–his score in the
selection process. The City’s summary judgment evidence included
the declaration of an assistant director of the City’s Civil
Service Department, who stated that “promotions were awarded to
Sergeants. . .starting from the highest score and proceeding
downward as positions became available.” The City also adduced
declarations of each of the eight assessors who rated Glover, four
of whom were African-American. Each assessor stated that
The ratings I gave to each Sergeant I assessed at the
1999 Assessment Center were based solely on the
information presented through the Assessment Center and
the Sergeants’ performance during the Assessment Center
exercises. At no time did I consider a Sergeant’s race
in rating the Sergeant during the Assessment Center
exercises. At no time did I consider a Sergeant’s
previous complaints of racial discrimination or other
protected activity in rating the Sergeant during the 1999
Assessment Center. I had no knowledge of any Sergeant I
assessed having ever previously complained of racial
discrimination or having participated in other similar
protected activities. In fact, I did not know nor did I
have any previous knowledge of any of the Sergeants that
I assessed during the 1999 Assessment Center.
The district court noted that Glover’s response in opposition to
the City’s motion for summary judgment recognized that he was
required to prove that the City’s non-discriminatory reason was

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1 Glover’s counsel died before the district court issued its
memorandum opinion and order and new counsel had not yet entered an
appearance, but the motion was ripe, and Glover never asked for a
hearing.
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pretextual, but held that “despite this, Plaintiff does not address
the City’s non-discriminatory, non-retaliatory reason whatsoever,
nor does he point to any evidence that shows that the City’s reason
is false.”1 The district court observed that Glover’s brief
alluded to a number of facts, but that Glover had not identified
which facts, if any, tended to show pretext, and the district court
declined “to parse through his brief and determine on its own which
facts establish pretext.” Still, the district court concluded that
even if it accepted all of Glover’s alleged facts as true, none
tended to show pretext.
II. Standard of Review
Our review is de novo. Perez v. Region, 307 F.3d 318, 323
(5th Cir. 2002). Summary judgment is appropriate if there is no
genuine issue of material fact for trial and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
When a party moves for summary judgment on the basis that the there
is no evidence of one or more elements of the non-moving party’s
claim, the burden is on the non-moving party to direct the court to
evidence that tends to establish a genuine issue of fact for trial.
Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698,
712-13 (5th Cir. 1994).

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2 As the district court observed, Glover made no mixed-motive
allegation. On appeal, Glover contends that he did raise this
theory, citing his brief in the district court. All the cited page
says is that “Those cases raising allegations of ‘mixed motives’
follow Price Waterhouse v. Hopkins, and the Civil Rights Act of
1991 modification.” This statement is in the context of describing
generally what a plaintiff must prove; it does not allege mixed-
motive as Glover’s theory, and no such theory appears in Glover’s
complaint.
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In a Title VII case, under the familiar McDonnell Douglas
framework, the initial burden upon the plaintiff is to establish a
prima facia case of discrimination; the defendant must then produce
evidence of a legitimate, non-discriminatory, non-retaliatory
reason for its actions. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th
Cir. 2003). If the defendant meets that burden, the plaintiff must
then show that the proffered reason is a mere pretext.2 Id.
III. Discussion
Glover presented no evidence in response to the City’s motion
for summary judgment that tends to show that the City’s proffered
explanation was pretext. Glover’s brief in the district court
averred that he had “superior qualifications for promotion to
Lieutenant.” That is not evidence. Glover also asserts that he
“has successfully taught others on how to succeed in the assessment
process.” That is not evidence of pretext. Glover’s statements
that he suffered discrimination because of his civil rights
activities are conclusory and are no evidence. Glover complains
that he never received a hearing on grievances he filed complaining
of the 1997 promotion process, but that is not probative of

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discrimination or retaliation by the outside assessors in the 1999
process. Glover asserts that the City “conveniently lost vital
documents related to Glover’s claim” or improperly withheld
information. This is a discovery complaint and is not evidence of
pretext. Glover states that former Police Chief Terrell Bolton
told him that “certain members of city government did not want to
see [him] promoted” based on his activities as President of the
Texas Peace Officers Association. Even taking this speculation as
true, it has no tendency to show that the outside assessors were
influenced in the 1999 process.
Glover’s brief in this court continues to refer to a wealth of
information which, if taken as true, tends to establish a prima
facia case, but nothing that tends to show pretext. Glover goes on
to assail the assessment process, but the basis of his lawsuit is
illegal retaliation, not a flawed merit-selection process. The
remainder of the brief is speculative about how the process might
have been influenced and does not direct us to probative evidence.
IV. Conclusion
Our combing of the record reveals no evidence to support a
claim that the City’s proffered non-discriminatory, non-retaliatory
reason was pretext, and there is ample evidence to the contrary.
We find no fault with the district court’s refusal to consider
theories not pled. The judgment of the district court is therefore

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AFFIRMED.

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