UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 01-40716 Summary Calendar _____________________

DARWIN PEGUESE,

Plaintiff-Appellant,

versus

J.R. BORUP, Individually; J.W. COONROD, Individually; MICHAEL T. GODINICH, Individually; J.M. LANE, Individually; WENDY L. MORRISON, Individually; J.H. SMITH, Individually; GEORGE W. WYLLIE, Individually; GALVESTON-TEXAS CITY PILOTS; GALTEX PILOTS SERVICE CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas (G-00-CV-519)

February 28, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Maintaining that the individual defendants, known collectively

as the Galveston-Texas City Pilots (Pilots), and a corporation

owned by the Pilots, Galtex Pilots Service Corporation (Galtex),

discriminated against him by declining to select him as a Galveston

deputy pilot, Darwin Peguese appeals the summary judgment awarded

the Pilots and Galtex on Peguese’s claims for: racially-motivated

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. deprivation of the right to make and enforce contracts, in

violation of

(a); conspiracy to deprive that right,

in violation of

(3); and state-law fraud,

intentional infliction of emotional distress, and conspiracy to

violate the constitutional right to contract. AFFIRMED.

I.

The hiring process for deputy pilots is codified in the Texas

Transportation Code. The Board of Pilot Commissioners for the

Ports of Galveston County (Pilot Board), which is not a party to

this action, is charged with “accept[ing] applications for pilot

licenses and certificates and determin[ing] whether each applicant

meets the qualifications for a pilot”. TEX. TRANSP. CODE § 67.017(2).

The Pilot Board does not have an administrative staff; it delegates

to the Pilots the responsibility for initially collecting

applications; and the Pilots forward those applications to the

Pilot Board so it may review applicant qualifications. After

completing the review, the Pilot Board “provide[s] names of all

qualified applicants for certificates to each pilot association

office [e.g., the Pilots] of Galveston County”. Id. § 67.017(3).

The Pilots may only appoint deputy pilots approved by the Pilot

Board. Id. § 67.038-.039.

The Pilots received Peguese’s application, along with

approximately 200 others, and forwarded it to the Pilot Board.

Because of several deficiencies in his application, the Pilot Board

2 did not approve Peguese as a qualified applicant. Specifically,

Peguese had failed to: (1) explain why he left prior jobs; (2)

identify supervisors at prior jobs; and (3) include telephone

numbers for his references. The Pilots selected two candidates —

one black and one white.

Peguese filed this action. With respect to the federal

claims, the district court granted summary judgment to the Pilots

because of the absence of a genuine issue of material fact as to

intentional racial discrimination. The district court noted that

evidence of intentional discrimination “is an essential element of

a claim for relief under section 1981”. See Nat’l Ass’n of Gov’t

Employees v. City Pub. Serv. Bd. of San Antonio,

(5th Cir 1994). Similarly, a § 1985(3) plaintiff must proffer

evidence of “invidiously discriminatory animus behind the

conspirators’ action”. Griffin v. Breckenridge,

(1971); see also Earnest v. Lowentritt,

(5th

Cir. 1982).2

2 Citing Jatoi v. Hurst-Euless-Bedford Hosp. Auth.,

, 1218 n.2 (5th Cir.), modified,

(5th Cir. 1987), cert. denied sub nom.

(1988), and concluding that the same issue — intentional discrimination — was critical to the § 1981 and § 1985 claims, the district court analyzed only the § 1981 claim expressly. Peguese does not take issue with that approach. In part II, and because the § 1985 claim is for conspiracy to violate a right secured by § 1981, we likewise address only the § 1981 claim. See Ramirez v. Sloss,

, 167 n.4 (5th Cir. 1980) (“The claim under

(3) alleges a conspiracy to violate section[] 1981[;] therefore our discussion is confined to the latter section[].”).

3 The district court concluded that, in the light of his

incomplete application, Peguese was “unqualified in the starkest of

terms: Defendants were legally barred from selecting him”. The

district court ruled that summary judgment was proper because

qualification is a sine qua non of a racial discrimination claim

under both methods of proving a prima facie case of discrimination

(by direct evidence or by an indirect or inferential method of

proof, see Mooney v. Aramco Servs. Co.,

(5th

Cir. 1995)).

The district court rejected Peguese’s assertion that the

Pilots had contributed to his not being qualified by failing to

inform him his application was incomplete. Peguese offered summary

judgment evidence in the form of a transcript of surreptitiously-

recorded telephone conversations with a William Kern, in which Kern

stated that one of the Pilots had sent letters to applicants

notifying them of deficiencies in their applications. Because the

large majority of the applicants were white, Peguese inferred that

his not receiving such a letter of deficiency was attributable to

the conspiracy to discriminate against him. The district court

noted that Kern had not stated that Peguese was singled out for

different treatment and that it was actually Peguese who informed

Kern that he had not received a letter of deficiency. Accordingly,

the district court declined to infer that Peguese’s not receiving

a letter was attributable to his race.

4 As to Peguese’s state-law claims, the district court granted

the Pilots summary judgment on: the fraud claim, because, being

unqualified, Peguese suffered no injury; the intentional infliction

of emotional distress claim, because Peguese had not proffered

evidence of extreme and outrageous conduct; and the claim for

conspiracy to violate Peguese’s constitutional right to contract,

for essentially the same reasons the court rejected the federal

claims.

II.

“We review a grant of summary judgment de novo, applying the

same standard as the district court.” Your Ins. Needs Agency Inc.

v. United States,

(5th Cir. 2001). “Summary

judgment is appropriate where no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of

law.” DeLeon v. Lloyd’s London, Certain Underwriters,

(5th Cir. 2001); see also FED R. CIV. P. 56(c). “On a

motion for summary judgment, a court reviews the facts in the light

most favorable to the non-movant.” Pratt v. City of Houston,

(5th Cir. 2001).

A.

Peguese contends the district court erred in ignoring “direct

and circumstantial evidence” of intentional discrimination against

him. “[A § 1981] plaintiff carries the initial burden of showing

actions taken by the employer from which one can infer, if such

5 actions remain unexplained, that it is more likely than not that

such actions were based on a discriminatory criterion illegal under

[§ 1981].” Ramirez v. Sloss,

(5th Cir. 1980)

(quoting Furnco Constr. Corp. v. Waters,

(1979);

internal quotation marks omitted) (applying Title VII principles to

§ 1981 employment discrimination). Peguese maintains there is “a

gross disparity in the way that [he], a black applicant” was

treated as compared to how the “180-200 primarily white applicants”

were treated; but, he has proffered no evidence as to the racial

composition of those applicants who did or did not receive letters

of deficiency. All that may be said with any certainty is that

Peguese did not receive such a letter. Given the circumstances of

this case — especially the fact that one of apparently only three

black applicants was chosen, from a pool of approximately 200 white

applicants, to fill one of the two available positions — it cannot

be inferred that Peguese’s not receiving a letter was attributable

to his race.3

B.

As for Peguese’s state-law claims, he correctly acknowledges

they turn largely on the disposition of his federal claims. He

3 Peguese construes the Pilots’ hiring of a black applicant as an effort to “thwart” an EEOC complaint Peguese had filed. Such an assertion, if true, might be tangentially relevant to a retaliation claim. However, Peguese’s presses only a discrimination claim on appeal. To the extent he raised a retaliation claim in district court, such claim is deemed waived. See, e.g., United States v. Maldonado,

, 910 n.7 (5th Cir. 1995).

6 fails to demonstrate: injury, as to the fraud claim; extreme and

outrageous conduct, as to the intentional infliction of emotional

distress claim; and discrimination, as to the claim for conspiracy

to violate his right to contract.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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