               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 00-31191

                         Summary Calendar
                       ____________________


     RODRIGO M SOLORZANO, SR

                                Plaintiff - Appellant

          v.

     SHELL CHEMICAL COMPANY

                                Defendant - Appellee


_________________________________________________________________

           Appeal from the United States District Court
              for the Eastern District of Louisiana
                         No. 99-CV-2831-L
_________________________________________________________________
                           May 18, 2001

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Rodrigo M. Solorzano, Sr., appearing pro

se, appeals from the magistrate judge’s grant of summary judgment

in favor of Defendant-Appellee Shell Chemical Company on

Solorzano’s race and age discrimination claims.   For the

following reasons, 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that this opinion should not be published and is not precedent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.
                  I. FACTUAL AND PROCEDURAL HISTORY

     Rodrigo M. Solorzano, Sr.,1 a fifty-four year old Hispanic

male born in Nicaragua, began working as a laboratory technician

at Shell Chemical Corporation’s (“Shell”) Taft Plant on July 10,

1989.    He was terminated by Shell on December 14, 1998.

According to Shell, Solorzano was selected for random drug

testing in accordance with Shell’s Substance Abuse Policy based

on his holding a safety and environmentally sensitive job.

Although Solorzano submitted to the test and signed a consent

form acknowledging that he had submitted a fresh and

unadulterated urine sample, Shell asserted that two independent

labs and an independent expert determined that the sample was

inconsistent with human urine.    Based on this evidence, Shell

stated that it terminated Solorzano for violation of Shell’s

Substance Abuse Policy and falsification of company records.

     On September 15, 1999, Solorzano filed suit in federal court

alleging race discrimination in violation of 42 U.S.C. § 1981

(1994) (“§ 1981”) and Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (1994), and age

discrimination in violation of the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (1999).

Specifically, Solorzano alleged that he was subjected to a


     1
        Solorzano appears pro se. We interpret briefs of pro se
litigants liberally. See Haines v. Kerner, 404 U.S. 519, 520
(1972) (per curiam).

                                  2
hostile work environment2 and that he was denied promotions,

improperly disciplined,3 and ultimately terminated because of his

race and age.

     On January 4, 2000, the magistrate judge4 issued an order

(the “January 4 Order”) scheduling a preliminary conference on

January 13, 2000.   Informed at the preliminary conference that

the parties had not met to discuss discovery issues and had

failed to file a discovery plan as required by Federal Rule of

Civil Procedure 26(f) (“Rule 26(f)”), the magistrate judge

ordered the parties to conduct a telephone conference on January

18, 2000.   The parties conferred on January 18, but Shell

declined to submit a Rule 26(f) discovery plan because Rule 26(f)

required the plan to be submitted prior to the scheduling

conference.

     On February 12, 2000, Solorzano submitted his first set of



     2
        Solorzano alleged a hostile work environment based on
being subjected to frequent and repeated “ethnic/racial/national
origin gibes and slurs” by coworkers. He contended that these
slurs were often made in the presence of supervisory and
management personnel and that he had made supervisory and
management personnel aware of the comments on at least three
occasions.
     3
        Solorzano asserted he was denied promotion to the
positions of Documentation Specialist, Trainer, Team Coach, and
Process Specialist.
     4
        This case was automatically referred to a magistrate
judge on September 9, 1999 and the parties consented to have a
magistrate judge conduct all proceedings in the case in
accordance with the provisions of 28 U.S.C. § 636(c) on January
25, 2000.

                                 3
written interrogatories and discovery requests, in response to

which Shell timely provided some 3159 pages of documents.

However, Shell objected to fourteen of the discovery requests and

failed to respond to Solorzano’s interrogatories.   The parties

conferred on March 16, regarding the objections to the discovery

documents, but were unable to come to any agreement.   On April

17, Solorzano filed a Motion to Compel Production of Documents

and Answers to Interrogatories (the “Motion to Compel”).    On May

3, the Motion to Compel was granted in part and denied in part

(the “May 3 Order”).   The magistrate judge denied Solorzano’s

Motion to Compel as it related to production of documents;

however, the magistrate judge stated that Shell was required to

supply all responsive materials “concerning its policies and

programs related to plaintiff’s job position at the Taft plant

for the period 1996-98.”   Furthermore, the magistrate judge

granted Solorzano’s Motion to Compel insofar as it concerned the

interrogatories, stating that “[r]esponses must be provided . . .

within ten (10) days of entry of this order.”   Finally, the

magistrate judge ordered the parties to meet within ten days to

clarify the document production and to resolve discovery issues,

which meeting occurred on May 12, 2000.5


     5
        Shell notes that on April 25, 2000, prior to the
issuance of the May 3 Order, it responded to Solorzano’s first
two interrogatories and objected to the third. The magistrate
judge appears not to have been aware of this action when he
issued his May 3 Order.

                                 4
     On June 13, 2000, Solorzano filed three additional motions,

including a Motion for Court-Supervised Discovery Conference (the

“Motion for Court-Supervised Discovery”).    While the magistrate

judge denied the Motion for Court-Supervised Discovery insofar as

it sought to require a Rule 26(f) plan, the magistrate judge

agreed to hold a court-supervised discovery conference.

According to the order issued by the magistrate judge following

the conference, several of Solorzano’s supplemental requests had

been mooted or satisfied.   However, there still remained several

requests to which the magistrate judge ordered Shell to respond,

either by stating no documents existed for the request, by

providing the documents, by objecting to the request, or by

seeking a protective order.   Shell filed a Motion for a

Protective Order on July 20, 2000, and provided the documents to

the magistrate judge for in camera review.

     On July 28, 2000, while its Motion for a Protective Order

was pending, Shell filed a Motion for Summary Judgment.    The

magistrate judge granted the motion and dismissed Solorzano’s

claims with prejudice.   Analyzing Solorzano’s failure-to-promote

and termination claims6 under the burden-shifting framework set

     6
        The magistrate judge also dismissed Solorzano’s state
law defamation claim, finding the claim, which was subject to a
one-year limitations period, prescribed. Additionally, the
magistrate judge found Solorzano’s ADEA claim and several of his
failure-to-promote claims barred by his failure to file an EEOC
charge within 300 days of the challenged actions, thereby
exhausting his administrative remedies. Solorzano has not
appealed the magistrate judge’s grant of summary judgment on

                                 5
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the

magistrate judge found that, even assuming that Solorzano could

establish a prima facie showing of national origin

discrimination,7 Shell had articulated legitimate,

nondiscriminatory reasons for its actions.   The magistrate judge

found that, apart from his subjective beliefs and unrelated

ethnically based comments by his coworkers, Solorzano presented

no evidence from which a reasonable factfinder could infer that

Shell’s asserted reasons were pretextual, and thus summary

judgment was appropriate.   Similarly, the magistrate judge

concluded that summary judgment was appropriate on Solorzano’s

claim of hostile work environment because Solorzano failed to

demonstrate any genuine issue   of material fact that the slurs


these issues, and therefore, they are waived. See Evergreen
Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 918 (5th Cir.
2000). We do note, however, that these time-barred acts may be
used as evidence of discriminatory intent in later actions. See
Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 n.12 (5th Cir.
1995) (citing Cortes v. Maxus Exploration Co., 977 F.2d 195 (5th
Cir. 1992) (listing cases)).
     7
        Solorzano asserts that his complaint alleges race
discrimination, not national origin discrimination. We note
that, in his EEOC filing he claimed national origin
discrimination. Because “[a] Title VII cause of action may be
based, not only upon the specific complaints made by the
employee’s initial EEOC charge, but also upon any kind of
discrimination like or related to the charge’s allegations,
limited only by the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of
discrimination,” we will consider both his national origin and
racial discrimination claims. See Dollis v. Rubin, 77 F.3d 777,
781 (5th Cir. 1995) (quoting Fine v. GAF Chem. Corp., 995 F.2d
576, 578 (5th Cir. 1993)).


                                 6
were motivated by ethnic animus or that his co-workers’ ethnic

slurs were sufficiently frequent or severe.    Therefore, the

magistrate judge dismissed Solorzano’s claims with prejudice.

     On August 14, 2000, the Motion for a Protective Order was

granted in part and denied in part.   Both Shell and Solorzano

filed Motions for Reconsideration, which were denied.

     Solorzano timely appeals.



                      II. STANDARD OF REVIEW

     “We review de novo questions of law such as a district

court’s interpretation of the Federal Rules of Civil Procedure.”

Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 827

(5th Cir. 1996).   We review the trial court’s evidentiary rulings

under an abuse of discretion standard.   See Curtis v. M&S

Petroleum, Inc., 174 F.3d 661, 667 (5th Cir. 1999).     The district

court’s disposition of contested discovery and procedural matters

is also reviewed under an abuse of discretion standard.      See

Atkinson v. Denton Publ’g Co., 84 F.3d 144, 147 (5th Cir. 1996).

     We review de novo a district court’s grant of summary

judgment.   See Evans v. City of Bishop, 238 F.3d 586, 588 (5th

Cir. 2000).   Summary judgment is appropriate when the record

shows “‘that there is no genuine issue as to any material fact

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

law.’”   Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th



                                 7
Cir. 2000) (quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d

155, 161 (5th Cir. 1996)).   “‘If the moving party meets the

initial burden of showing there is no genuine issue of material

fact, the burden shifts to the nonmoving party to produce

evidence or designate specific facts showing the existence of a

genuine issue for trial.’”   Id. (quoting Taylor, 93 F.3d at 161).

“[W]e must view all facts in the light most favorable to the

nonmovant.”   Cardinal Towing & Auto Repair, Inc. v. City of

Bedford, Tex., 180 F.3d 686, 690 (5th Cir. 1999).



                    III. RULE 26(F) CONFERENCE

     As an initial matter, Solorzano raises a challenge to the

magistrate judge’s governing of the pretrial discovery process,

namely his failure to order the parties to hold a discovery

conference and to file a discovery plan as required by Rule

26(f).   Rule 26(f)8 requires that the parties meet at least

     8
         Federal Rule of Civil Procedure 26(f) provides:

     Except in actions exempted by local rule or when
     otherwise ordered, the parties shall, as soon as
     practicable and in any event at least 14 days before a
     scheduling conference is held or a scheduling order is
     due under Rule 16(b), meet to discuss the nature and
     basis of their claims and defenses and the
     possibilities for a prompt settlement or resolution of
     the case, to make or arrange for the disclosures
     required by subdivision (a)(1), and to develop a
     proposed discovery plan. The plan shall indicate the
     parties’ views and proposals concerning:

     (1) what changes should be made in the timing, form, or
     requirement for disclosures under subdivision (a) or

                                 8
fourteen days prior to the scheduling conference to discuss

several topics, including discovery, and to develop a discovery

plan, which must be submitted to the court.   Solorzano argues

that the magistrate judge’s January 4 Order scheduling the

preliminary conference for January 13 effectively made it

impossible for the parties to arrange a discovery conference as

required by Rule 26(f).   Furthermore, when Solorzano requested

such a discovery conference in his Motion for Court-Supervised

Discovery, the magistrate judge denied the motion insofar as it

sought to require the Rule 26(f) plan, stating that “requiring a

plan of the type envisioned by Rule 26(f) would be a vain and


     local rule, including a statement as to when
     disclosures under subdivision (a)(1) were made or will
     be made;

     (2) the subjects on which discovery may be needed, when
     discovery should be completed, and whether discovery
     should be conducted in phases or be limited to or
     focused upon particular issues;

     (3) what changes should be made in the limitations on
     discovery imposed under these rules or by local rule,
     and what other limitations should be imposed; and

     (4) any other orders that should be entered by the
     court under subdivision (c) or under Rule 16(b) and
     (c).

     The attorneys of record and all unrepresented parties
     that have appeared in the case are jointly responsible
     for arranging and being present or represented at the
     meeting, for attempting in good faith to agree on the
     proposed discovery plan, and for submitting to the
     court within 10 days after the meeting a written report
     outlining the plan.

FED. R. CIV. P. 26(f).

                                 9
useless act.”   Solorzano asserts that these acts frustrated his

procedural right to have a Rule 26(f) discovery conference and

plan, which would have prevented many of the later discovery

disputes.

     Shell asserts that Rule 26(f) provides latitude to

individual courts to modify the rule’s requirements.

Furthermore, as the magistrate judge was actively involved in the

discovery process and responsive to Solorzano’s motions and

concerns, Shell argues that Solorzano cannot point to any

prejudice he suffered from the lack of the Rule 26(f) discovery

conference and plan.   For these reasons, Shell contends that the

magistrate judge’s actions do not constitute an abuse of

discretion.

     We do not find either the magistrate judge’s order

scheduling the preliminary conference or his order denying in

part Solorzano’s Motion for Court-Supervised Discovery to be an

abuse of discretion.   See Atkinson v. Denton Publ’g Co., 84 F.3d

144, 147 (5th Cir. 1996).   Although Rule 26(f) requires the

parties to meet at least fourteen days prior to the scheduling

conference to formulate a discovery plan, nothing in Rule 26(f)

requires the parties to wait until the court has set a date for

the scheduling conference before arranging such a meeting.

Additionally, Rule 26(f), by its terms, gives the district court

discretion to exempt particular cases from complying with the

requirements of Rule 26(f), providing that the parties shall have

                                10
the discovery conference “[e]xcept . . . when otherwise ordered.”

FED. R. CIV. P. 26(f).   The magistrate judge exercised his

discretion, after having discussed the issue with the parties at

the hearing, when he determined that the filing of a discovery

plan would not be helpful.

     Further, we need not decide if the magistrate judge’s orders

were in error, because even assuming they were, such error is

subject to harmless error review.     See Union City Barge Line,

Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987).9

We find that because of the active role the magistrate judge

played in overseeing discovery in this matter, any error that may

have occurred from the magistrate judge’s failure to order the

parties to hold a Rule 26(f) discovery conference was harmless.

Informed of the parties’ failure to hold a Rule 26(f) conference

at the preliminary conference held, the magistrate judge ordered

the parties to hold a telephone discovery conference.    The

parties were unable to reach agreement on the discovery issues

during that conference, ultimately leading to Solorzano’s filing

his Motion to Compel.    In his May 3 Order, the magistrate judge

     9
         Union City was decided under a prior version of Rule
26(f), which provided: “The court shall . . . hold a conference
on the subject of discovery upon motion by the attorney.” Union
City, 823 F.2d at 135 (alteration in original). This court found
the failure of the district court to hold the mandatory
conference to be error, but only harmless error. See id. at 136.
Although the provisions relating to a conference with the court
are removed from subdivision (f), “[t]his change does not signal
any lessening of the importance of judicial supervision.” FED.
R. CIV. P. 26(f) advisory committee notes 1993 amends.

                                 11
ordered the parties to meet in person to discuss document

production and discovery.   The parties obviously failed to arrive

at a mutually agreeable outcome, as evidenced by Solorzano’s

filing of his three additional motions.    The magistrate judge

granted Solorzano’s request for a court-supervised discovery

conference, issuing several orders to Shell regarding discovery.

However, after hearing from the parties, the magistrate judge

also determined that requiring the parties to file a Rule 26(f)

plan would be useless.

     Given the magistrate judge’s active role in the discovery

process and the inability of the parties to resolve their

discovery issues, we find the magistrate judge’s failure to order

the parties to file a Rule 26(f) plan, if error at all, was

harmless.



             IV. OBJECTION TO THE INTERROGATORY

     As another threshold issue, Solorzano challenges the

magistrate judge’s management of the discovery process in his

decision to sustain Shell’s objection to one of Solorzano’s

interrogatories.   Solorzano contends that the magistrate judge

erred in sustaining Shell’s objection to Interrogatory No. 3

because Shell’s objection was in contravention of the magistrate

judge’s May 3 Order as well as untimely.    Shell replies that the

magistrate judge has the discretion to permit untimely objections



                                12
for good cause and that it complied with the magistrate judge’s

May 3 Order.

     We do not find the magistrate judge’s decision to sustain

Shell’s objection to Interrogatory No. 3 to be an abuse of

discretion.    Solorzano submitted his first set of interrogatories

and document requests to Shell on February 12, 2000.    On March

10, 2000, Shell responded to Solorzano’s request for production

of documents either by submitting material or by objecting to the

request.   Although Shell failed to respond to Solorzano’s

interrogatories, in its reply to Solorzano’s Motion to Compel,

Shell informed the magistrate judge that its failure to respond

to the interrogatories was an oversight.    Shell informed the

magistrate judge that it would provide a response as soon as

possible, noting, however, that it intended to object to

Interrogatory No. 3.   Further, on April 25, 2000, eight days

after Solorzano filed his Motion to Compel, Shell in fact

answered Interrogatories No. 1 and 2, and objected to

Interrogatory No. 3.

     In his May 3 Order, the magistrate judge stated: “The motion

is granted as to the interrogatories, which were not answered.

Responses must be provided to these interrogatories within ten

(10) days of entry of this order.”    As Solorzano admits, a

response to an interrogatory can mean either an objection or an

answer.    The magistrate judge could have ordered Shell to answer

the interrogatories but, with knowledge that Shell intended to

                                 13
object to Interrogatory No. 3, the magistrate judge instructed

Shell to respond to the interrogatories.   Given the wording of

the magistrate judge’s order, we do not find that Shell’s

objection to Interrogatory No. 3 constituted disregard of that

order.

     Additionally, we cannot agree that the magistrate judge’s

decision to sustain Shell’s untimely objection to Interrogatory

No. 3 was an abuse of discretion.    Although Federal Rule of Civil

Procedure 33(b) states that objections not served within 30 days

after the service of the interrogatories shall be deemed waived,

the Rule gives the district court discretion to excuse the

untimeliness for good cause.   See FED. R. CIV. P. 33(b)(3), (4).

Shell had responded to Solorzano’s request for production of

documents within the proper thirty-day window.   In its reply to

Solorzano’s Motion to Compel, Shell informed the magistrate judge

that its failure to respond to the interrogatories was an

oversight, and Shell promptly remedied that oversight.    Given

these facts, we cannot find that the magistrate judge’s decision

to sustain Shell’s untimely objection was an abuse of discretion.




                    V. SUMMARY JUDGMENT

     Solorzano contends that the magistrate judge erred in

granting summary judgment in favor of Shell on his Title VII



                                14
claims of discriminatory failure to promote, unequal disciplinary

treatment (including termination), and hostile work environment.

As we explain below, we find that the magistrate judge properly

granted summary judgment in favor of Shell.



                   A. Analytical Framework

     Claims of racial discrimination supported by circumstantial

evidence are analyzed under the framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).   “First, the

plaintiff must establish a prima facie case of discrimination.”

See Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097,

2106 (2000).   Once the plaintiff satisfies this prima facie

burden, the burden shifts to the defendant to produce a

“legitimate, nondiscriminatory reason for its decision.”     Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000).

“This burden on the employer is only one of production, not

persuasion, involving no credibility assessments.”     Id.

     “If the defendant can articulate a reason that, if believed,

would support a finding that the action was nondiscriminatory,

‘the mandatory inference of discrimination created by the

plaintiff’s prima facie case drops out of the picture and the

factfinder must decide the ultimate question: whether [the]

plaintiff has proved [intentional discrimination].’”     Evans v.

City of Houston, No. 99-20778, 2001 WL 277839, at *3 (5th Cir.

Mar. 21, 2001) (alterations in original) (some internal

                                15
quotations omitted) (quoting Russell, 235 F.3d at 222).       “In the

context of a claim of discrimination, a plaintiff must adduce

evidence that the justification was a pretext for racial and age

discrimination.”      Id. at *4.   “[A] plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s

asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated.”       Reeves,

120 S. Ct. at 2109.     A showing of pretext by the plaintiff will

not always be sufficient to infer discrimination.      For example,

“if the record conclusively revealed some other,

nondiscriminatory reason for the employer’s decision, or if the

plaintiff created only a weak issue of fact as to whether the

employer’s reason was untrue and there was abundant and

uncontroverted independent evidence that no discrimination had

occurred,” the employer would still be entitled to summary

judgment.   See id.

     With this framework in mind, we proceed to analyze

Solorzano’s Title VII claims.



             B. Discriminatory Failure to Promote

     Solorzano claims that Shell discriminated against him by

failing to promote him to the position of Taft Process Specialist

in 199810 because of his race or national origin.      To establish a

     10
        Solorzano also asserts that Shell discriminated against
him by failing to promote him to the positions of Documentation

                                    16
prima facie case of discriminatory failure to promote, “a

plaintiff must demonstrate that (1) [he] is a member of a

protected class; (2) [he] sought and was qualified for an

available employment position; (3) [he] was rejected for that

position; and (4) the employer continued to seek applicants with

the plaintiff’s qualifications.”     Scales v. Slater, 181 F.3d 703,

709 (5th Cir. 1999).   For purposes of this opinion, we will

assume without deciding, as did the magistrate judge, that

Solorzano established a prima facie case of employment

discrimination.11

     Shell articulated a nondiscriminatory reason for its failure

to promote Solorzano, i.e., that he was not the top scorer at the

end of the selection process.   Solorzano achieved the highest

score of any candidate in the written examination, but was the

least successful candidate during the interview portion of the

process.   His combined score placed him third out of the four

candidates who had advanced to the interview stage of the

process.   The interviews were conducted by a panel of five


Specialist, Trainer, and Team Coach. As discussed supra in note
6, although these claims are barred because Solorzano failed to
file an EEOC charge within 300 days of the incidents, the acts
may be used as evidence of discriminatory intent in later
actions.
     11
        Solorzano is a member of a protected class and he
applied for the Process Specialist position. Further, as one of
the four finalists for the position, he was likely qualified for
the position, but he was rejected in favor of an individual
outside the protected class. Therefore, it appears that
Solorzano establishes his prima facie case.

                                17
individuals consisting of three white males and two black males.

Notes from a discussion Solorzano had with his supervisor after

finding out he had not received the promotion (the “Post-

Interview Notes”) indicate that Solorzano had been given low

scores by the panelists, not because of the answers he had given

during the interview, but because, during their time working with

him over the years, the panelists had a negative impression of

him and believed he would not be successful in a leadership role.

We find that Shell articulated an adequate nondiscriminatory

reason for its failure to promote Solorzano.

      Therefore, the mandatory inference of discrimination created

by Solorzano’s prima facie case disappears, and the question

becomes whether Solorzano has provided sufficient summary

judgment evidence to prove that Shell discriminated against him

based on race or national origin.    See Evans, 2001 WL 277839, at

*4.   We find that Solorzano has failed to present sufficient

evidence to create a jury issue that Shell’s asserted reason for

failing to promote him to the Process Specialist position is

pretextual.

      To establish pretext, Solorzano contends that Shell promoted

individuals less qualified than he and that the criteria used in

the selection process was subjective and subject to bias.    The

only evidence submitted by Solorzano to establish that the

individuals promoted by Shell were less qualified was Solorzano’s

own affidavit and the Post-Interview Notes.    This evidence is

                                18
insufficient to create a jury question regarding whether Shell’s

proffered justification is pretextual.

     To survive summary judgment, Solorzano must offer enough

evidence to raise a question of material fact regarding whether

Shell’s articulated reason for failing to promote him (i.e., that

he was not the highest scorer in the selection process) was a

pretext for race or national origin discrimination.   For example,

in Blow v. City of San Antonio, Texas, 236 F.3d 293 (5th Cir.

2001), this court found that the plaintiff, an African-American

woman, presented sufficient evidence to survive summary judgment.

See id. at 298.   To establish pretext, the plaintiff submitted

evidence that the defendant deliberately failed to publicize the

job opening, concealed the job opening from the plaintiff, and

after having filled the opening, suggested to the plaintiff that

it was a good time to submit her application.   See id. at 297-98.

That evidence was sufficient to create a material issue of

disputed fact as to whether the defendant’s asserted reason was

false.   See id. at 298.

     By contrast, Solorzano has presented no evidence beyond his

subjective belief that he was more qualified for the position to

demonstrate that the legitimate reason for Shell’s failure to

promote him to the position of Process Specialist was a pretext

for race or national origin discrimination.   An individual’s

subjective belief that he is more qualified for the position is

insufficient to establish a material question of fact.   See

                                19
Nicols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir.

1996).      In fact, the evidence submitted by Solorzano confirms

that he was unsuccessful in the interview process because of the

panel’s perception of him as a troublemaker with a bad reputation

in the company.      The Post-Interview Notes and his affidavit

confirm that his low scores during the interview were based on

the panel’s negative perception of his interaction with his

coworkers and his perceived lack of leadership ability.      The only

evidence that could be construed as evidence that Shell’s

articulated reason was a pretext for race or national origin

discrimination were the ethnic slurs made by coworkers.12

Although our stray remarks jurisprudence must be viewed with

caution in light of Reeves, see Evans v. City of Bishop, 238 F.3d

586, 591 (5th Cir. 2000); Russell, 235 F.3d at 229, because the

remarks were made by coworkers who had no influence on the

promotion decision and were unrelated to the employment decision,

we do not find that they create an issue of fact regarding

whether Shell’s asserted reason was pretextual.      Cf. infra Part

V.D.

       As Solorzano has failed to submit sufficient evidence to

create a material question of fact as to whether Shell’s asserted

       12
        Although we may consider Shell’s previous failures to
promote Solorzano, see supra note 6, Solorzano has again failed
to present any evidence, other than his subjective belief
regarding his superior qualifications, that Shell’s asserted
reasons for failing to promote him on these prior occasions were
a pretext for racial or national origin discrimination.

                                   20
reason for its failure to promote him to the position of Process

Specialist was a pretext for race discrimination, we agree with

the magistrate judge that summary judgment was properly granted

to Shell in this regard.



                 C. Unequal Disciplinary Treatment

     Solorzano alleges that his termination was discriminatory

under Title VII in that it constituted an unfair and unequal

application of discipline.   Shell responds that Solorzano was

terminated consistent with its internal policy regarding drug

testing.   Specifically, Shell followed its policy in terminating

Solorzano when two independent labs and an independent expert

concluded that the urine sample Solorzano had submitted pursuant

to a random drug test was inconsistent with human urine,

constituting a failure to cooperate with a search and

falsification of company records.

     “In work-rule violation cases, a Title VII plaintiff may

establish a prima facie case by showing ‘either that he did not

violate the rule or that, if he did, white employees who engaged

in similar acts were not punished similarly’.”   Mayberry v.

Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting

Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.

1980)); see also Simmons v. Rothe Devel., Inc., 952 F. Supp. 486,

490 (S.D. Tex. 1997); cf. Lindsey v. Prive Corp., 987 F.2d 324,

328 (5th Cir. 1993) (finding summary judgment inappropriate for

                                21
ADEA claim when younger employees were not similarly disciplined

and company policy dictated written warnings before discharge).

Furthermore, to demonstrate that white employees were not

similarly disciplined, the plaintiff “must show that white

employees were treated differently under circumstances ‘nearly

identical’ to his.”    Mayberry, 55 F.3d at 1090.

     We find that the magistrate judge properly granted summary

judgment in favor of Shell.    Solorzano argues that Shell’s

violation of its own policies and its prior discriminatory

treatment of him were sufficient to create a jury question as to

whether Shell’s asserted reason for his termination was

pretextual.    Evidence of violations of internal policy may be

considered in determining whether summary judgment is

appropriate.    See Lindsey, 987 F.2d at 328.   However, Solorzano

has failed to show that Shell, in fact, violated its internal

policy.

     While the policy states that employees who fail the drug

test may be given treatment rather than be terminated, it does

not state that the same consideration will be given to employees

who fail to submit an actual sample of their own urine as

required by the policy.    In fact, it states that failure to

cooperate with the policy, including failure to cooperate with a

search, can result in termination.

     Solorzano’s additional evidence of prior discipline

situations and violations of Shell’s internal policy fail for

                                 22
similar reasons.   He has submitted no evidence that similarly

situated white employees were treated differently.13   Further,

Solorzano has submitted no evidence that Shell’s asserted reasons

for his termination were a pretext for race or national origin

discrimination.

     The magistrate judge did not err in granting summary

judgment in favor of Shell on Solorzano’s claim of discriminatory

discipline.

     13
        Solorzano argues that he sought records of two similarly
situated white employees to which access was denied when the
magistrate judge granted Shell’s Motion for a Protective Order.
However, the magistrate judge found the employees not to be
similarly situated. The first employee had tested positive for
drugs and was given an opportunity to undergo rehabilitation.
The second employee had been given a one-day “Decision Making
Leave” for falsifying a log entry. Both events had occurred more
than five years previously. We do not find the magistrate
judge’s evidentiary ruling to be an abuse of discretion.
     Similarly, Solorzano alleges that the magistrate judge
improperly limited his scope of discovery to the Shell Taft
Plant, preventing him from obtaining reliable statistical
evidence of discrimination. Although Solorzano correctly cites
Duke v. University of Texas, 729 F.2d 994, 997 (5th Cir. 1984),
as holding that the district court’s failure to allow the
plaintiff access to promotion and pay records for the entire
university was an abuse of discretion, we do not find that case
to be controlling. First, in Duke, this court noted that it was
“significant that the record reflects that the discovery request
was based on more than a fanciful hope of counsel.” Id. at 996.
In contrast, Solorzano has presented no evidence that the alleged
discrimination was company wide. Second, allowing the plaintiff
access to the promotion and pay records for the university is a
far cry from allowing Solorzano access to all of the employment
databases of Shell, “its parents, predecessors, subsidiaries, and
affiliates, each of its present and former officers, employees,
agents, representatives, and attorneys, and each person acting or
purporting to act on its behalf.” As Solorzano’s request was
overbroad in scope, the magistrate judge properly limited the
contested discovery to the relevant period of time at the Shell
Taft Plant.

                                23
                    D. Hostile Work Environment

     To survive summary judgment on a claim of hostile work

environment, Solorzano must create a fact issue on each of the

following elements: “(1) racially discriminatory intimidation,

ridicule, and insults that are; (2) sufficiently severe or

pervasive that they; (3) alter the conditions of employment; and

(4) create an abusive working environment.”   Walker v. Thompson,

214 F.3d 615, 625 (5th Cir. 2000).

     Whether an environment is “hostile” or “abusive” is
     determined by looking at all the circumstances,
     including the frequency of the discriminatory conduct,
     its severity, whether it is physically threatening or
     humiliating, or a mere offensive utterance, and whether
     it unreasonably interferes with an employee’s work
     performance. To be actionable, the challenged conduct
     must be both objectively offensive, meaning that a
     reasonable person would find it hostile and abusive,
     and subjectively offensive, meaning that the victim
     perceived it to be so.

Shepard v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th

Cir. 1999) (citations omitted) (emphasis added).

     Solorzano contends that he was subject to constant and

pervasive derogatory name-calling during the nine years he worked

at Shell that cumulatively impacted his situation at work.

However, in his affidavit, Solorzano states: “I felt that the

people making the comments or calling me names were not motivated

by ethnic animus, but were at most guilty of crass humor and

behavior.”   Given that Solorzano, himself, did not believe that

the comments were racially motivated, we find that Solorzano

fails to create a fact issue as to the elements of a hostile work

                                24
environment claim.   Solorzano’s “perception of his environment is

a significant factor; whether discrimination exists is, by its

very nature, often a subjective inquiry.”     Vaughn v. Pool

Offshore Co., 683 F.2d 922, 925 (5th Cir. 1982).     The magistrate

judge did not err in granting summary judgment in favor of Shell

on Solorzano’s hostile work environment claim.



                      VI. Section 1981 Claim

     Finally, Solorzano claims that the magistrate judge’s

failure to address his § 1981 claims constitutes reversible

error.   The magistrate judge dismissed all of Solorzano’s claims

with prejudice, although he did not expressly address Solorzano’s

§ 1981 claim.   We note, however, that “[c]laims of intentional

discrimination brought under Title VII and Section 1981 require

the same proof to establish liability.”     Byers v. Dallas Morning

News, Inc., 209 F.3d 419, 422 n.1 (5th Cir. 2000).    As discussed

supra, Solorzano had presented insufficient evidence on his Title

VII claims to create a question of material fact for the jury.

We find, therefore, that despite the magistrate judge’s failure

to explicitly address Solorzano’s § 1981 claim, the omission does

not warrant a remand or reversal of the grant of summary

judgment.   As we find that summary judgment was appropriately

granted in favor of Shell on the Title VII claims, we also find

summary judgment appropriate on the § 1981 claims.



                                25
                         VII. CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




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