                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 28, 2003

                                                         Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                    Clerk


                        ____________________

                             No. 02-41630

                          Summary Calendar
                        ____________________


     CLARENCE A PITRE

                     Plaintiff - Appellant


          v.

     WADLEY REGIONAL MEDICAL CENTER, formerly known as Texarkana
     Memorial Hospital

                    Defendant - Appellee
_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                          No. 5:01-CV-139
_________________________________________________________________


Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.

PER CURIAM:*

     This appeal arises from a claim of racially discriminatory

discharge from employment.    Plaintiff-Appellant Clarence A.

Pitre, M.D., appeals the district court’s grant of partial

     *
        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that this opinion should not be published and is not precedent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.
summary judgment in favor of Defendant-Appellee Wadley Regional

Medical Center.   We affirm.

     The relevant facts are largely undisputed.   Clarence A.

Pitre, M.D., an African-American male, is an obstetrical and

gynecological (“OB/GYN”) physician.   Pitre was employed by Wadley

Regional Medical Center (“Wadley”) from November 1998 until

August 1999.   One of the terms of his employment contract

expressly required that he hold and keep current his Texas

Department of Public Safety (“DPS”) certification.    Pitre’s DPS

certification lapsed on July 31, 1999, while he was on vacation;

when he returned to work, he was informed of this lapse and told

that he needed to have another doctor sign off on his

prescriptions until his DPS renewal was completed.    However, on

August 2, 1999, Wadley’s interim CEO Bill Curtis fired Pitre and

explained to Pitre that the termination was due to his failure to

maintain a current DPS certification.

     Pitre initiated this employment discrimination suit in May

2001, claiming that Wadley discharged him because of his race in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a) (2000), and 42 U.S.C. § 1981 (2000).    In response,

Wadley filed a motion for partial summary judgment, alleging that

Pitre could not establish a cause of action under either statute.

The entire case was referred to a magistrate judge.   The

magistrate judge, while assuming that Pitre could make out a

prima facie case of racial discrimination, concluded that Pitre

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had failed to present substantial evidence to demonstrate that

Wadley’s reasons were pretextual.     The magistrate judge

recommended granting Wadley’s motion for partial summary

judgment.    The district court reached the same conclusion as the

magistrate judge as to pretext, and it granted Wadley’s motion.1

     Before we begin our review of the district court’s grant of

partial summary judgment, we turn our attention to several

motions.    Wadley moves to strike (1) certain portions of the

record excerpts containing deposition testimony and (2) the

portions of Pitre’s brief that refer to these excerpts.      Pitre

moves to supplement the record with the deposition pages

contained in his record excerpts.     Wadley argues that inclusion

of the deposition pages would be improper because these

depositions were not made part of the record, and Pitre responds

that the record should be supplemented because there was no harm

resulting from his failure to attach the deposition pages.      As a

general rule, this court is barred from considering evidence not

included in the record on appeal, and “attachments to briefs will

not suffice.”    Great Plains Trust Co. v. Morgan Stanley Dean

Witter & Co., 313 F.3d 305, 315 n.11 (5th Cir. 2002) (quoting In

re GHR Energy Corp., 791 F.2d 1200, 1201-02 (5th Cir. 1986) (per

curiam)).    Because the depositions were not a part of the

     1
        Departing from the magistrate judge’s recommendation,
the district court found that Pitre could establish a prima facie
case of discrimination because he presented evidence that other
similarly situated persons were treated more favorably than he.

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district court record, the depositions cannot be considered; the

absence of harm is irrelevant.   The motions to strike are granted

and the motion to supplement is denied.

     Turning to the grant of partial summary judgment, this court

reviews a district court’s grant of summary judgment de novo,

reviewing the record under the same standards the district court

applied in determining whether summary judgment was appropriate.

See, e.g., Byers v. Dallas Morning News, 290 F.3d 419, 424 (5th

Cir. 2000).   Under the summary judgment standard, a moving party

is entitled to judgment as a matter of law when the pleadings,

answers to interrogatories, admissions and affidavits on file

indicate no genuine issue as to any material fact.    Id.

     As the Supreme Court stated in Reeves v. Sanderson Plumbing

Products, 530 U.S. 133 (2000), “McDonnell Douglas and subsequent

decisions have ‘established an allocation of the burden of

production and an order for the presentation of proof,’” whereby

a “plaintiff must [first] establish a prima facie case of

discrimination. [After doing so,] [t]he burden [of production]

shift[s] to [the defendant] to ‘produce evidence that the

plaintiff was rejected . . . for a legitimate, nondiscriminatory

reason.’”   Id. at 142-43.   If the defendant is able to produce a

legitimate reason, then the presumption of discrimination

vanishes.   Id.   However, because the burden of persuasion

“‘remains at all times with the plaintiff,’” the plaintiff is

“afforded the opportunity [to demonstrate that an issue of

                                  4
material fact exists and] that the legitimate reasons offered by

the defendant were not its true reasons, but were a pretext for

discrimination.”   Id.

     To establish his prima facie case of racial discrimination,

Pitre must demonstrate: (1) that he belongs to a protected group;

(2) he was qualified for his job; (3) an adverse employment

action was taken against him; and (4) he was replaced by someone

outside his protected group, or others similarly situated were

treated more favorably.    E.g., Okoye v. Univ. of Tex. Hous.

Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).    We agree

with the district court’s assessment that Pitre’s prima facie

case is relatively weak.   However, even assuming arguendo that

Pitre can demonstrate his prima facie case of discrimination, his

evidence in support of pretext is lacking.

     In attempting to show pretext, Pitre relies on essentially

the same evidence that he used to establish his prima facie case.

Pitre contends that Wadley’s decision not to fire two white

doctors whose certifications had expired suggests that similarly

situated persons were treated more favorably than he.    This

dissimilar treatment, Pitre argues, indicates that the real

reason for his termination was based on racial discrimination.

     The district court concluded that Pitre did not present

evidence that Wadley’s legitimate, non-discriminatory reason for

its decision to terminate Pitre was false.   We agree.   According


                                  5
to the summary judgment record, there were significant

differences between the situations of Dr. Johnny Jones and Dr.

Thomas Wilson, the two white doctors that Pitre suggests were

similarly situated but not discharged by Wadley.   First, the

evidence indicates that Jones’s DPS license never expired, which

makes his situation completely different from Pitre’s.   Second,

although Wilson’s DPS certificate did expire, by the time Wadley

administrators became aware of the expiration, the certificate

had already been renewed.   Thus, in comparing Pitre with Jones

and Wilson, Pitre was the only doctor to have his certification

expire and have the Wadley administrators become aware of its

expiration before it was renewed; these circumstances provided

Wadley with a permissible basis for termination under Pitre’s

employment contract.   More important, it means that Pitre’s

situation was not similar to the situations of Jones and Wilson.

Whether we say that Pitre fails to make out a prima facie case or

we say that he fails to provide sufficient evidence of pretext,

the conclusion that summary judgment in favor of Wadley must be

sustained is inescapable.

     The final judgment of the district court is AFFIRMED; both

of Wadley’s motions to strike are GRANTED; Pitre’s motion to

supplement the record is DENIED.




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