                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                          January 20, 2005
                                   FOR THE FIFTH CIRCUIT
                                                                                      Charles R. Fulbruge III
                                                                                              Clerk

                                            No. 04-20191
                                         (Summary Calendar)




CLIFTON STEWART,
                                                                                   Plaintiff-Appellant,

                                                versus

CITY OF BRYAN PUBLIC WORKS,

                                                                                  Defendant-Appellee.


                            Appeal from the United States District Court
                                for the Southern District of Texas
                                          H-02-CV-588



Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

        The plaintiff, Clifton Stewart (“Stewart”), appeals from the order and final judgment of the

district court dismissing his Title VII claim after the district court granted summary judgment in favor

of the defendant, City of Bryan, Texas (“the City”). The central issue on appeal is Stewart’s claim

that the district court erred in granting the defendant’s motion for summary judgment. Stewart

argues there exists genuine issues of material fact to preclude granting summary judgment. Because



        *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
we conclude that the district court correctly decided the motion for summary judgment, the order and

final judgment dismissing Stewart’s Title VII claim are AFFIRMED.

                                         BACKGROUND

       On April16, 2002, Stewart, an African-American male, was terminated from his place of

employment with the City of Bryan, Texas, Stewart, for violating the City’s strict policy against

violence at the work place. The district court found that Stewart was terminated for assaulting Carlos

Rodriguez, a co-worker, in the Water Services Division of the Public Works Department. The City

alleged that during St ewart ’s employment it maintained a zero tolerance policy for violence. The

record indicates that after an investigation by the City of Bryan’s Police Department, Stewart was

arrested and charged with criminal assault.1 Based upon the police investigation, the City terminated

Stewart . Stewart subsequently challenged his termination before a municipal disciplinary review

board. After the hearing, the board decided to upho ld Stewart’s termination, and cited a prior

infraction by Stewart of raising a threat of violence against a different co-worker, as part of for

terminating its reasons him. After Stewart was terminated, the district court found that Stewart’s

position was temporarily filled by a white male, and that Stewart’s position was later temporarily

filled by Luis Perez, a Hispanic male. Stanley McMurray, an African-American male, was ultimately

permanently picked to take Stewart’s position.

       On April 18, 2002, Stewart filed charges of race discrimination with the Texas Commission

on Human Rights and with the United States Equal Employment Opportunity Commission

(“EEOC”). At the time, Stewart was represented by counsel. The charge alleged that the City

terminated Stewart on the basis of his race. Stewart was issued a Notice of Right To Sue letter on


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           Stewart was found not guilty after being prosecuted on the assault charge.

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July 29, 2002. On May 23, 2003, Stewart’s counsel withdrew as Stewart’s trial counsel and Stewart

proceeded pro se. Shortly thereafter, Stewart filed this suit in the United States District Court for

the Southern District of Texas, alleging that the City discriminated against him on the basis of his

race, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The City moved for

summary judgment contending that Stewart had no t made a prima facie showing of race

discrimination sufficient to support a claim under Title VII. Stewart did not respond to the motion

for summary judgment. The district court, thereby, concluded that the motion was unopposed. The

City’s motion was granted, and this appeal by Stewart ensued.

                                    STANDARD OF REVIEW

        We review de novo a district court’s grant of a motion for summary judgment, applying the

same standard as the district court did in the first instance. See Burge v. Parish of St. Tammany, 187

F.3d 452, 465 (5th Cir. 1999). Summary judgment is appropriate where the moving party establishes

“there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(c). The moving party must show that if the evidentiary material of record were reduced

to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its

burden. Celotex v. Catrett, 477 U.S. 317, 327 (1986).

        Once the moving party has carried its summary judgment burden, the opposing party must

set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations

or denials of its pleadings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). This

showing requires more than some metaphysical doubt as to the material facts. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584-86 (1986).

                                            DISCUSSION


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        After thorough review of this record, we conclude that Stewart has not made a prima facie

showing of race discrimination to prevail on a claim under Title VII of the Civil Rights Act.

Stewart’s claim that the district court erred in granting the City motion for summary judgment is

therefore without merit.

        Under the familar McDonnel Douglass burden shifting analysis, a prima facie showing of race

or national origin discrimination by an employer is established if the employee demonstrates the

following four elements: that the employee (1) belongs to a protected group; (2) was qualified for

his position; (3) was dismissed or suffered an adverse employment action; and (4) was replaced with

a similarly qualified person who not a member of t he employee’s protected group. McDonnell

Douglas Corporation v. Green, 411 U.S. 793 (1973); see also Peagram v. Honeywell, 361 F.3d 272,

281 (5th Cir. 2004); Celestine v. Petroleos de Venzuella SA, 266 F.3d 343, 354-55 (5th Cir. 2001);

Rubinstein v. Administrators of the Tulane Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000).

The plaintiff bears the burden of establishing a prima facie showing. 218 F.3d at 399. However, once

the plaintiff establishes a prima facie case of discrimination, “the burden shifts to the defendant(s) to

articulate some legitimate, non-discriminatory reason for the challenged employment action; if such

a showing is made, then the burden shifts back t o the plaintiff to demonstrate that the articulated

reason was merely a pretext to unlawful discrimination. Id.

        The first three elements are not in dispute. The district court correctly concluded that

although Stewart established the first three elements of a prima facie case for employment

discrimination, Stewart failed to provide sufficient evidence to satisfy the fourth requirement. Stewart

failed to respond to the City’s motion for summary judgment. The City presented evidence that

Stewart’s job was temporarily filled by a white person, which was later temporarily filled by a


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Hispanic male, and then permanently filled by an African-American male. By not responding to the

motion, Stewart presented no evidence to rebut the City’s assertion that Stewart was not replaced

by someone outside Stewart’s protected group. As previously stated, to survive a motion for

summary judgment, the non-moving party must present sufficient evidence to support the elements

of its prima facie case. See Celotex v. Catrett, 477 U.S. at 321-23.

        But even were we to find that Stewart presented a prima facie case for race discrimination,

the City presented evidence that Stewart was terminated for violations of the its no tolerance policy

against violence. Thus, even if the burden had shifted to the City, it proffered a nondiscriminatory

reason for terminating Stewart, mainly, that Stewart violated its policy against work-place violence.

Stewart’s contentions, on the other hand, offered no evidence that the City’s “proffered reasons were

false, and . . . that the real reason for his discharge was because he was a member of a protected

class.” Peagram, 361 F.3d at 281. Based on this record, we conclude that a rational fact finder could

not find that the City discriminated against Stewart on the basis of race. See Pratt v. City of Houston,

Tx., 247 F.3d 601, 606-07 (5th Cir. 2001).

                                          CONCLUSION

        Because the district court’s order of summary judgment in favor of the City was proper, the

court’s subsequent order and final judgment dismissing Stewart’s Title VII are affirmed.

        AFFIRMED.




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