           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 16, 2009

                                     No. 09-10048                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



RANDY SPEARS

                                                   Plaintiff-Appellant
v.

PATTERSON UTI DRILLING CO.

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:07-CV-43


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Randy Spears (“Spears”), an African American, filed
suit against Patterson UTI Drilling Co. (“Patterson”) alleging employment
discrimination based on race in violation of 42 U.S.C. § 1981. The district court
granted Patterson’s motion for summary judgment, and Spears appealed. We
AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                     No. 09-10048

             I. FACTUAL AND PROCEDURAL BACKGROUND
       Patterson originally hired Spears on April 16, 2005, as a derrick hand to
work on an oil rig near San Angelo, Texas.                  Spears worked there for
approximately one year before resigning. On September 26, 2006, Patterson
again hired Spears as a derrick hand. While Spears was working for Patterson
this second time, the driller on his rig became intoxicated, argued with a
supervisor, and turned off all the lights on the rig. As a result, Patterson
dismissed the driller.        Spears’s supervisor, Tony Valencia (“Valencia”),
recommended that Spears be promoted to driller, and Drilling Superintendent
Manuel Gallegos (“Gallegos”) approved the promotion.                Valencia agreed to
“babysit” Spears to help him become acclimated to the new position because they
“need[ed] a driller.”
       Spears worked for Patterson as a driller for about six months, during
which time he received mixed feedback. He was known as a hard worker and
received no written warning for poor performance, but was spoken to informally
on two occasions. Valencia told him that he had performed the “nipple up”
procedure 1 too slowly on his first day as a driller. Later Valencia told him that
he was doing “too much” of the crew’s work. Spears alleges that his supervisors,
including Valencia and Gallegos, made derogatory comments or racial slurs in
his presence on five separate occasions while he was employed as a driller for
Patterson.
       In April 2007, a supervisor complained to Gallegos that Spears and his
crew had taken too long, some eight hours, to perform the “nipple up” procedure.
Gallegos discharged Spears and his entire crew. Two crew-members, both non-
members of Spears’s protected class, were rehired immediately. The other


       1
        The “nipple up” procedure is a complex protective measure on oil rigs involving the
assembly of well-control or pressure-control equipment on a wellhead. Patterson claims that
the procedure should take three to four hours.

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                                  No. 09-10048

African American crew-member eventually returned to work for Patterson.
Spears has not reapplied.
      On October 9, 2007, Spears filed a discrimination claim against Patterson
in the Northern District of Texas. He alleges that Patterson violated 42 U.S.C.
§ 1981 by terminating his employment based on race. Patterson moved for
summary judgment on September 15, 2008, on the grounds that there is no
evidence that Spears was discharged due to his race or color. The district court
granted Patterson’s motion for summary judgment on December 30, 2008.
Spears appeals.
                                 II. ANALYSIS
A. Standard of Review
      This Court reviews the district court’s grant of summary judgment de
novo, applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(citation omitted).   Summary judgment is proper when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). In making a determination
as to whether there is a genuine issue of material fact, this Court considers all
of the evidence in the record but refrains from making credibility determinations
or weighing the evidence. Turner, 476 F.3d at 343 (citation omitted). We draw
all reasonable inferences in favor of the nonmoving party, but “a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’” Id. (citations omitted). “Summary
judgment is appropriate if a reasonable jury could not return a verdict for the
nonmoving party.” Id. (citation omitted).




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                                 No. 09-10048

B. Spears’s Racial Discrimination Claim
      Section 1981 entitles all persons within the jurisdiction of the United
States with the same rights to enter in and enforce contracts as those “enjoyed
by white citizens.” 42 U.S.C. § 1981.       The elements of an employment
discrimination claim asserted under § 1981 are identical to a discrimination
claim asserted under Title VII. Flanagan v. Aaron E. Henry Cmty. Health Sevs.
Ctr., 876 F.2d 1231, 1233 (5th Cir. 1989). Thus, employment discrimination
claims brought under § 1981 are analyzed under the same evidentiary
framework as Title VII claims. Roberson v. Alltel Information Servs., 373 F.3d
647, 651 (5th Cir. 2004).
      Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Spears has not provided direct evidence of
discrimination, therefore, his claim based on circumstantial evidence is analyzed
under the burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). See Turner, 476 F.3d at 345.
      Spears must first establish a prima facie case of discrimination by
establishing that he “(1) is a member of a protected class; (2) was qualified for
the position; (3) was subjected to an adverse employment action; and (4) was
replaced by someone outside the protected class, or in the case of disparate
treatment, shows that other similarly situated employees were treated more
favorably.” Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).
Once Spears demonstrates a prima facie case, Patterson must articulate a
legitimate, non-discriminatory reason for its decision to terminate Spears. Id.
If Patterson meets this burden, Spears must then offer sufficient evidence to
raise a genuine issue of material fact as to whether (1) Patterson’s reasons are

                                       4
                                      No. 09-10048

false or unworthy of credence and, thus, merely a pretext for discrimination.2
See id. at 312.
       1. Spears’s prima facie case of discrimination
       Spears successfully establishes a prima facie case of discrimination. The
first three elements are easily met: Spears is an African American, was
recommended for the position by a supervisor, and was discharged. Patterson
challenges only the fourth element of Spears’s prima facie case, arguing both
that Spears was not “replaced” but rather that his responsibilities were absorbed
by other employees, and that similarly situated employees of several races were
also fired under the same circumstances.              As the district court correctly
explained, Spears met the fourth element because Patterson’s evidence described
“who replaced” Spears and Spears’s evidence demonstrated that his replacement
was not a member of his protected class. See, e.g., Armendariz v. Pinkerton
Tobacco Co., 58 F.3d 144, 149-150 (5th Cir. 1995).
       2. Patterson’s legitimate, non-discriminatory reason
       Spears raises an inference of discrimination by meeting his prima facie
burden. In order to rebut this inference, Patterson must offer a legitimate, non-
discriminatory reason for its decision to terminate Spears. Patterson asserts
that it discharged Spears and his crew for taking too long to perform the “nipple
up” procedure.      An employee’s poor job performance is a legitimate, non-
discriminatory reason for discharge. Little v. Republic Refining Co., 924 F.2d 93,
96 (5th Cir. 1991). This shifts the burden back to Spears to demonstrate that
Patterson’s reason is merely pretext for discrimination.
       3. Pretext for discrimination
       Spears asserts several theories to demonstrate pretext. None of these
raise a genuine issue of material fact.

       2
        Spears could also demonstrate that while true, Patterson’s reason was also motivated
by a racial purpose. Spears does not allege that Patterson’s reason was true here.

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                                       No. 09-10048

              a. Racial animus
       Spears first argues that he provided evidence of Patterson’s racial animus
by citing five occasions where supervisors Valencia and Gallegos directed
derogatory comments or racial slurs towards him. Evidence of animus towards
a protected group may indicate pretext. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 151 (2000). The district court held that evidence of the
comments alone was insufficient to raise a fact issue on pretext. Spears failed
to provide the Court with the dates of four allegedly discriminatory comments.3
Spears did provide the date for one comment made by Gallegos near the time
Spears was discharged. Gallegos told Spears that he no longer disliked African
Americans, just whites. This comment, however, is vague. This Court has
explained that “comments that are ‘vague and remote in time’ are insufficient
to establish discrimination.” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th
Cir. 1996) (quoting Guthrie v. Tifco Indus., 941 F.2d 374 (5th Cir. 1991)).
       Spears argues that the district court took a narrow view of what comments
may constitute indications of racial animus. He argues that the Seventh Circuit
has given greater credit to similar evidence. See Hunt v. City of Markham, Ill.,
219 F.3d 649, 652 (7th Cir. 2000) (finding that summary judgment was
inappropriate where a decision-maker made repeated racist and ageist remarks).
Spears argues that in the context of the other un-dated occurrences when
African Americans were called derogatory names and considered bad luck, a jury
could reasonably conclude that Gallegos’s comment indicates racial animus.
       None of this undermines the district court’s conclusion. In Hunt, the
Seventh Circuit dealt with comments from decision-makers that were constant,



       3
         Other comments included the use of the term “mayates,” which is Spanish slang for
dark skinned people and means dung beatle. Spears alleges that he was ridiculed for his
“ghetto” habits and for dressing like a “gangster.” He also accuses Gallegos of saying that it
was “bad luck to have blacks on a rig.”

                                              6
                                   No. 09-10048

specific, and proximate in time. See id. Unlike the plaintiff in Hunt, Spears has
provided evidence that many employees on his oil rig made racially derogatory
remarks but could neither date them nor link them to the decision-maker. As
stated above, comments which are distant in time are insufficient to support a
claim of discrimination. Brown, F.3d at 655. The one comment Spears can date
is from the decision-maker but only reveals that Gallegos may have harbored
racial animus towards African Americans at a point in the past. Such vague
evidence does not raise a genuine issue of material fact suggesting pretext for
discrimination. See, e.g., Petts v. Rockledge Furniture LLC, 534 F.3d 715, 723
(7th Cir. 2008); Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 404 (5th
Cir. 2001).
      Spears also argues that this Court’s approach towards comments as
evidence of pretext or racial motivation as articulated in Brown was invalidated
by the Supreme Court in Reeves. The Court in Reeves denounced the use of a
four-part test that was articulated in Brown. Reeves, 530 U.S. at 151. The test
from Brown required that the comments be (1) related to the protected class, (2)
proximate in time to the adverse employment action, (3) made by an individual
with authority over the employment decision at issue, and (4) related to the
employment decision at issue. Brown, 82 F.3d at 655. However, Reeves and its
progeny explain that derogatory comments must be analyzed according to their
content and their speaker. Russell v. McKinney Hospital Venture, 235 F.3d 219,
226 (5th Cir. 2000). The only comment that is attributable to the decision-maker
in this case is Gallegos’s statement that he no longer harbors racial animus
towards African Americans. This statement is simply insufficient to raise a
genuine issue of material fact as to pretext for discrimination because it is vague
and only demonstrates past, if any, animus.
              b. Spears’s other theories of pretext
      Spears offers several other theories that suggest that Patterson’s given

                                         7
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reason is a pretext for discrimination.         He argues that Patterson’s
reason–Spears’s crew’s slowness in “nippling up”–is false because it was not the
reason originally given to Spears for his discharge. He also points out that
Gallegos and a supervisor disagreed about who first recommended the
termination. Evidence that an employer has given a false reason for terminating
employment may contribute to a determination that the reason was pretext for
discrimination. Haun v. Ideal Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996).
This does not aid Spears, however, because he fails to offer evidence that the
given reason was false. See Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091
(5th Cir. 1995).   In fact, the evidence confirms that on two occasions this
procedure took longer than expected.
      Spears also argues that Patterson’s reason raises a suspicion of pretext
because Patterson did not take required steps prior to the final termination
decision.   He claims that Patterson’s disciplinary policy requires a written
reprimand before termination. Patterson never issued a written reprimand to
Spears and Patterson did not launch an investigation into the reason the “nipple
up” procedure took longer than ususal. While departure from normal company
procedure might contribute to a finding of pretext, Spears must provide evidence
that the given reason was false or that his termination was motivated by a
discriminatory purpose to survive summary judgment.         See Richardson v.
Monitronics Int’l., 434 F.3d 327, 336 (5th Cir. 2005). Spears failed to provide
evidence that demonstrates either a false reason or a discriminatory motive.
Patterson fired Spears’s entire crew, which was made up of members of several
racial groups without previous written reprimands or an investigation into the
reason for slow performance. Also, all members of Spears’s crew, including the
other African American member, have returned to work for Patterson. Spears
never reapplied. He alleges the other African American member was rehired
after the suit began in order to defeat his claim. The district court dismissed

                                       8
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this allegation as baseless because Spears was unable to provide the date that
the other African American crew-member recommenced work with Patterson.
Spears fails to raise a genuine issue of material fact which suggests that
Patterson’s given reason is a pretext for discrimination.
C. Spears’s Challenge of the “Same Actor Inference”
      Spears also questions the district court’s conclusion that the “same actor
inference” weighs against his evidence of discrimination.       The same actor
inference creates a presumption that animus was not present where the same
actor responsible for the adverse employment action either hired or promoted the
employee at issue. Gallegos was involved with both Spears’s promotion and
discharge. Spears correctly argues that the presumption created by the same
actor inference is not irrebuttable. Haun, 81 F.3d at 546. The district court did
not, however, use the “same actor inference” as mandatory in noting that the
inference weighs against Spears in his claims that Patterson only rehired his
African American crew-member in retaliation for the commencement of this
case. That allegation was not supported by evidence. There is no error in the
district court’s application of the “same actor inference.”
                              III. CONCLUSION
      For the foregoing reasons, the district court’s grant of Patterson’s motion
for summary judgment is AFFIRMED.




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