            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-11333
                                          Summary Calendar
                                          _______________



                                       CHARLES E. BIRDOW,
                                                     Plaintiff-Appellant,
                                               VERSUS

                                      WILLIAM HENDERSON,
                     POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE,

                                                     Defendant-Appellee.


                                    _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas
                                        (3:97-CV-1715-P)
                                 _________________________
                                           May 5, 2000


Before SMITH, BARKSDALE, and                         1978 and was Manager of Distribution
  PARKER, Circuit Judges.                            Operations (“MDO”) at the Dallas Bulk Mail
                                                     Center (“DBMC”). In January 1995, postal
JERRY E. SMITH, Circuit Judge:*                      inspectors began investigating allegations of
   Charles Birdow appeals an adverse                 sexual harassment at DBMC, followed by an
summary judgment denying his race                    investigation by USPS Labor Relations.
discrimination claim. Finding no genuine issue       Birdow received a notice of proposed removal
of material fact as to pretext, we affirm.           for improper conduct (sexual harassment and
                                                     employee favoritism) and unsatisfactory job
                     I.                              performance and was terminated based on the
   Birdow, a black male, began working for           charges of improper conduct.
the United States Postal Service (“USPS”) in
                                                        Three female employees accused Birdow of
                                                     sexual harassment, and six supervisors alleged
   *
                                                     that he favored his employee-girlfriend in a
      Pursuant to 5TH CIR. R. 47.5, the court has    manner that disrupted postal operations.
determined that this opinion should not be           Birdow denied t he allegations and, after
published and is not precedent except under the      exhausting administrative remedies, sued for
limited circumstances set forth in 5TH CIR. R.       race discrimination in violation of title VII.
47.5.4.
The court granted summary judgment,                    position with a person who is not a member of
concluding that Birdow had failed to establish         the protected group.” Vaughn v. Edel, 918
a prima facie case of racial discrimination and        F.2d 517, 521 (5th Cir. 1990). Where the
to present evidence that the USPS’s                    fourth factor is not applicable, as where the
articulated non-discriminatory reason for              discharged employee is not replaced, the
discharge was pretextual.                              plaintiff instead may show that a similarly
                                                       situated employee who is not of his protected
                      II.                              class was not discharged. See id.
   We articulated the analysis for title VII
discrimination cases in Mayberry v. Vought                The USPS acknowledges that Birdow has
Aircraft Co., 55 F.3d 1086, 1089-90 (5th Cir.          satisfied the first three elements but claims he
1995) (internal quotation marks, footnotes,            has failed to establish the fourth. Birdow
and citations omitted):                                contends that he has established the fourth
                                                       factor both with his deposition testimony that
   The plaintiff must establish a prima facie          he was replaced by a white male and with
   case that the defendant made an                     evidence that several similarly situated white
   employment decision that was motivated              management employees were not disciplined.
   by a protected factor. Once established,            Although the USPS and the district court
   the defendant bears the burden of                   focus on the latter assertion, there is no
   producing evidence that its employment              evidence contradicting Birdow’s deposition
   decision was based on a legitimate                  testimony that he was replaced by a white
   nondiscriminatory reason. The burden                male.
   then shifts back to the plaintiff to prove
   that the defendant’s proffered reasons                  The USPS instead focuses on whether the
   were a pretext for discrimination. But,             replacement was permanent or temporary.
   if the defendant has offered a legitimate           While it is difficult to understand the relevance
   nondiscriminatory reason for its action,            of that distinction, we need not decide whether
   the presumption of discrimination                   Birdow’s evidence satisfied his prima facie
   derived from the plaintiff’s prima facie            burden, because summary judgment was
   case simply drops out of the picture, and           appropriate based on his failure to raise a
   the ultimate question is discrimination             genuine issue of material fact as to pretext.1
   vel non.

Because this case arises on summary                       1
                                                             The parties fail to clarify the confusing state
judgment, Birdow need only raise a genuine             of the record regarding Birdow’s replacement.
issue of material fact regarding pretext.              Birdow has consistently asserted, beginning with
                                                       his first amended complaint, that he was replaced
   In a disparate treatment discharge case, the        by a white employee. In its answer, the USPS
plaintiff must first prove that he was qualified       admitted that Birdow was replaced by a white
for the position and was discharged under              employee. The USPS later sought summary
circumstances giving rise to an inference of           judgment, however, on the ground that Birdow had
unlawful discrimination. See Texas Dep’t of            presented no such evidence, seemingly in conflict
Community Affairs v. Burdine, 450 U.S. 248,            with Birdow’s deposition testimony.
253 (1981). This circuit follows McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802                  The district court seems to have overlooked this
                                                       issue. We need not decide it, because even
(1973), in articulating the following generally        assuming, arguendo, that Birdow made a prima
applicable four-part test: The plaintiff may           facie case, he failed to raise a genuine issue of
prove a prima facie case of discrimination by          material fact regarding pretext. In this regard, we
showing that “(1) he is a member of a                  note the Court’s language in United States Postal
protected group; (2) he was qualified for the          Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
job that he held; (3) he was discharged; and           715 (1983), that “[w]here the defendant has done
(4) after his discharge, his employer filled the                                   (continued...)

                                                   2
                    III.                                  pretextual by alleging that white managers
   The USPS produced evidence of a                        who engaged in conduct similar to his were
legitimate nondiscriminatory reason for the               not discharged. At the time of his removal,
discharge, namely evidence of sexual                      there were six MDO’s working at DBMC,
harassment and employee favoritism. Three                 four blacks and two whites. Two of the blacks
female employees accused Birdow of sexual                 were not disciplined, nor were the two whites.
harassment.                                               Birdow is not aware of any preferential
                                                          treatment received by one of the whites but
   Ontrecia Harrison received a gift from                 claims that the other, Robert Deal, was
Birdow that she returned. Harrison claimed                similarly situated in that Deal had dated
that Birdow attempted to transfer her to a less           subordinates, eventually marrying one of them,
desirable position shortly thereafter. Cheryl             and allegedly had worked to align his wife’s
Thomas complained that Birdow had asked                   days off with his own. Birdow does not claim
her out on a date on multiple occasions and               that Deal had any sexual harassment
that she was given an unfavorable evaluation              allegations leveled against him.
and placed on restricted sick leave after
rejecting these advances.           Bettye Jo                 Birdow also claims that Gary Gale, a white
Washington complained that Birdow had                     Supervisor of Distribution Operations
attempted to kiss and fondle her on multiple              (“SDO”), was similarly situated and treated
occasions.          W a s h in g t o n m a d e            more favorably. The SDO position is the level
contemporaneous complaints to two                         of supervision directly below MDO. Birdow’s
supervisors and alleged that she was used less            knowledge of Gale’s alleged wrongdoing
often as an acting supervisor after rejecting             consists of a rumor that Gale had whispered
Birdow’s advances. The testimony of other                 sexual innuendoes to a mail handler. In fact,
employees corroborated key elements of these              after an anonymous call reported that Gale
claims.                                                   was involved in a consensual relationship with
                                                          a subordinate and was padding her time card,
    Six DBMC supervisors reported that                    he was placed on administrative leave but was
Birdow used his position to advantage his                 reinstated when the investigation found no
girlfriend, mail handler Felicia Abu. Multiple            evidence to substantiate the allegation.
supervisors alleged that when after-tour
overtime was called for Abu’s entire shift,                  Birdow also claims that SDO Ron
Birdow would release Abu, causing problems                Townsend sexually harassed an employee
with staffing and morale. There also were                 named Sandra Beavers, but Birdow has no
allegations that Birdow spent an inordinate               evidence to back up this allegation and does
amount of time visiting with Abu while she                not know whether Townsend was disciplined.
was on duty, so much so that one supervisor               Lastly, Birdow introduced a statement by
had to request that Birdow leave Abu alone so             Alvin Cole, a supervisor at DBMC, that
she could work.                                           numerous management personnel dated
                                                          employees.
  Birdow attempts to demonstrate that the
USPS’s proffered nondiscriminatory reason is                  Because none of these employees was
                                                          involved in nearly identical circumstances,
                                                          Birdow fails to demonstrate that any
                                                          comparable employee was treated more
(...continued)                                            favorably, and thus he fails to prove that the
everything that would be required of him if the
plaintiff had properly made out a prima facie case,       proffered reason for discharge is false. See
whether the plaintiff really did so is no longer          Burdine, 450 U.S. at 256; Little v. Republic
relevant. The district court has before it all the        Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
evidence it needs to decide whether the defendant         Whereas Birdow sexually harassed several
intentionally discriminated against the plaintiff”        subordinates and extended job benefits to his
(internal quotation marks omitted).                       girlfriend in a manner that disrupted employer
                                                      3
operations, the only proffered employee of
equal seniority, Robert Deal, had no sexual
harassment charges brought against him.
SDO’s are of lesser seniority, and Birdow has
no knowledge or evidence of any wrongdoing
by Gale or Townsend.

  AFFIRMED.




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