               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 02-10057

                         Summary Calendar


DAVID PATT,
                                           Plaintiff-Appellant,

                              versus

SWEETHEART CUP,
                                           Defendant-Appellee.



          Appeal from the United States District Court
               For the Northern District of Texas
                        (3:99-CV-2443-X)

                           July 17, 2002



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Patt appeals the district court’s grant of Sweetheart

Cup’s motion for summary judgment on his Title VII claims. Patt

alleges that Sweetheart Cup, his former employer, discriminated

against him on the basis of race in connection with his termination

from his position as a clamp truck driver. We affirm.

     Patt was terminated after a confrontation with Chris Gray, a

     *
      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this opinion should not be published and is not precedent except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.

                                 1
fellow African-American    employee.     Because   Gray’s   forklift   was

blocking Patt’s access through a part of the warehouse, he seized

control of Gray’s forklift and began to move materials that were

blocking his path. Gray alleged that Patt threatened him with

physical violence. Gray complained to his supervisor, who asked

Patt to describe in writing his version of the incident. Patt was

suspended later that day, and was discharged two days later. He

then filed a charge of discrimination with the EEOC, alleging that

his discharge was discriminatory. The EEOC dismissed Patt’s charge

and issued a right to sue letter. Patt then filed this suit.           The

district court granted Sweetheart Cup’s motion for summary judgment

on all of his claims.

     Claims of racial discrimination based only on circumstantial

evidence are evaluated under the burden-shifting framework set

forth in McDonnell Douglas Corp. v. Green.1 Under this three-part

scheme, a plaintiff must first establish a prima facie case of

discrimination by showing: (1) he belongs to a protected group; (2)

he was qualified for the position sought; (3) he suffered an

adverse employment action; and (4) he was replaced by someone

outside the protected class.2 The district court correctly held

that Patt failed to provide any summary judgment evidence that



     1
         411 U.S. 792, 802-805 (1973).
     2
         Price v. Federal Exp. Corp., 283 F.3d 715, 720 (5th Cir.
2002).

                                  2
establishes that the position remained open or that he was replaced

by someone outside of the protected class.

     Moreover, the incident with Gray was a legitimate, non-

discriminatory reason for Patt’s discharge. Patt admits that he was

involved in a verbal altercation with Gray, and Sweetheart Cup’s

determination that he was the aggressor is reasonable. Even if Patt

had established a prima facie case, he could not demonstrate that

Sweetheart Cup's stated reason for his dismissal is merely a

pretext for intentional discrimination.3 Patt must provide some

evidence demonstrating that discrimination lay at the heart of

Sweetheart Cup's decision,4 and has provided none.

     Patt      points    to   other    incidents    assertedly        of    disparate

treatment      that     allegedly     occurred    during    his   employment        at

Sweetheart Cup, incidents that were not complained of in his EEOC

charge. While Patt is not required to assert all legal claims in

the EEOC charge,5 he must at least assert the facts that are the

basis for those legal claims.6 The scope of a Title VII complaint

is limited to the scope of the EEOC investigation which can

reasonably      be      expected      to   grow    out     of   the        charge   of



     3
         Id.
     4
         Id.
     5
       Harris v. Parker College of Chiropractic, 286 F.3d 790, 795
(5th Cir. 2002).
     6
         Id.

                                           3
discrimination.7 Given that Patt alleged in the EEOC charge that

the earliest date of discrimination occurred on July 21, 1999–two

days before he was discharged–he is not permitted to complain of

persistent discrimination that existed throughout his employment at

Sweetheart Cup. His retaliation claim, which was also not made in

the EEOC charge, relies upon these same allegations and is not

permitted. The district court properly concluded that these claims

were barred for failure to exhaust administrative remedies.

     For the foregoing reasons, the district court did not err in

granting summary judgment. AFFIRMED.




     7
      Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395
(5th Cir. 2000).

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