Summary Calendar DAVID AGREEN v. TRINH DANG LA, Individually

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20597
Summary Calendar
DAVID A GREEN
Plaintiff-Appellant
v.
TRINH DANG LA, Individually, and doing business as Fidelity National Title
Insurance Company Fee Office #72
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-2097
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant David A. Green contends that Appellee Trinh Dang La offered
him a job as an escrow assistant through her market representative and then
rescinded the offer upon learning that Green was African-American. La
responds that she never hired Green as an escrow assistant; rather, she was
looking to hire an escrow officer. Upon learning from Green’s employer that he
United States Court of Appeals
Fifth Circuit
F I L E D
May 16, 2008
Charles R. Fulbruge III
Clerk

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No. 07-20597
1 Section 1981(a) provides that:
All persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
2
was not qualified to be an escrow officer, La informed Green that she could not
offer him employment. Green admits that he was not qualified for an escrow
officer position.
A jury trial was conducted in this case on July 23-24, 2007. At the
conclusion of Green’s case-in-chief, La moved for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a). On July 25, 2007, the district court
granted La’s motion. Although the district court judge noted that he could not
determine at this stage of the proceedings whether Green applied for the escrow
officer or escrow assistant position, he found that he must “evaluate [La’s] intent
based upon what position she was evaluating [Green] for.” The district court
concluded that “there is insufficient evidence to create a fact question for the
jury on the issue of whether [Green’s] race was a motivating factor in [La’s]
decision.”
We review the grant of judgment as a matter of law de novo, applying the
same standard as the district court. See Ford v. Cimarron Ins. Co., 230 F.3d
828, 830 (5th Cir. 2000). Judgment as a matter of law is appropriate where
“there is no legally sufficient evidentiary basis for a reasonable jury to have
found for that party with respect to that issue.” Id. (citation and internal
quotation marks omitted).
Green alleges that he suffered racial discrimination in violation of 42
U.S.C. § 1981,1 which “prohibits racial discrimination in the making and
enforcement of private contracts.” Patterson v. McLean Credit Union, 491 U.S.

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No. 07-20597
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164, 172 (1989). In other words, § 1981 “prohibits, when based on race, the
refusal to enter into a contract with someone, as well as the offer to make a
contract only on discriminatory terms.” Id. at 176-77. To establish a prima facie
case of race discrimination under § 1981, Green must “prove purposeful
discrimination.” Id. at 186. Specifically, Green must “prove by a preponderance
of the evidence that [he] applied for and was qualified for an available position,
that [he] was rejected, and that after [he] was rejected respondent either
continued to seek applicants for the position, or . . . filled the position with” an
employee of a different race. Id.
The burden-shifting framework for Title VII cases–outlined in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)–also applies to § 1981 claims.
Patterson, 491 U.S. at 186. Thus, if Green establishes a prima facie case, “the
burden of production shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its action.” Auguster v. Vermilion Parish Sch. Bd., 249
F.3d 400, 402 (5th Cir. 2001). At that point, the McDonnell Douglas framework
disappears and “the plaintiff must produce substantial evidence of pretext” in
order to prevail on his discrimination claim. Id. at 402-03.
After reviewing the record and trial transcript, we find that even if Green
established a prima facie case, the district court nonetheless properly granted
judgment as a matter of law because La produced a legitimate, non-
discriminatory reason for not entering into an employment agreement with
Green. Specifically, La believed that Green was seeking employment as an
escrow officer and learned that Green was not qualified for this position. Even
if Green is correct in his belief that he sought employment as an escrow
assistant, he did not produce evidence at trial to establish that La’s explanation
was pretextual. Without such evidence, the trier of fact is left with the following
findings: (1) La legitimately believed that Green was seeking employment as an

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No. 07-20597
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escrow officer and (2) Green was not qualified as an escrow officer. Accordingly,
Green has not established a violation of § 1981.
AFFIRMED.

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