               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 99-11376
                            Summary Calender
                         _____________________


          SHAWN GODWIN

                                           Plaintiff-Appellant

          v.

          PIER 1 IMPORTS (US), INC

                                           Defendant-Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                         No. 4:98-CV-60-Y
_________________________________________________________________
                           July 12, 2000

Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Shawn Godwin (“Godwin”) appeals the

district court’s grant of summary judgment in favor of Defendant-

Appellee Pier 1 Imports (U.S.), Inc. (“Pier 1").    We AFFIRM.



                                  I.

     Godwin, an African-American male, is a former employee of


     *
     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this opinion should not be published and is not precedent except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.
Pier 1.   Godwin was first employed by Pier 1 in 1989 as a

receiving clerk.   By 1995, after a series of promotions and

raises, Godwin was the Lead Copy Center Technician at Pier 1's

home office in Fort Worth, Texas.      In September 1995, Godwin

suffered an on-the-job injury that strained his back and broke

his right hand.

     Godwin’s injuries prevented him from immediately returning

to work and, pursuant to the Family and Medical Leave Act

(“FMLA”), Pier 1 placed Godwin on job-protected medical leave.

Godwin’s twelve weeks of job-protected leave under the FMLA

expired on December 14, 1995.   Under Pier 1's medical leave

policy, however, an employee could take up to an additional six

months of medical leave after the expiration of his FMLA job-

protected leave.   During this additional leave, however, the

employee’s job is not protected.       If Pier 1 fills the employee’s

job during this time, the employee may attempt to find another

position within Pier 1 for which he is qualified.      If an employee

does not return to work within the six months he is

administratively terminated.

     Despite the fact that Godwin’s job-protected leave expired

in December 1995, Pier 1 kept Godwin’s position open for several

weeks.    In early February 1996, Pier 1 learned that Godwin still

had not been released by his physician to return to work and that

it was uncertain when Godwin would be able to return.      Therefore,

Pier 1 took steps to fill the Lead Copy Center Technician

                                   2
position.    On February 12, 1996, a Copy Center Technician, Kyle

DeGroat (“DeGroat”), was promoted to Lead Copy Center Technician.

The position vacated by DeGroat was filled the same day by the

Lead Mail Room Attendant, Gary Whalen (“Whalen”).    On February

27, 1996, Whalen’s vacated position was filled by Eddie Solis, a

Pier 1 employee in the payroll department.

     In March 1996, Godwin was issued a limited release by his

physician.   This release allowed Godwin to return to work, but it

substantially limited what type of work Godwin could perform.

Godwin then interviewed for a position with Pier 1 as a Sample

Room Clerk, but withdrew himself from consideration because he

felt he could not perform the required tasks under his current

physical restrictions.   On April 22, 1996, Godwin was released by

his physician to return to work with no restrictions.    Godwin,

however, never contacted Pier 1 requesting to return to work or

inquiring as to available positions.   Having exhausted his six

months of additional leave without returning to work, Godwin was

administratively terminated on June 21, 1996.1

     Godwin believes that Pier 1 illegally discriminated against

him due to his race.   After exhausting his administrative

remedies, Godwin filed suit in the United States District Court



     1
       Godwin belatedly submitted an application for employment
to Pier 1 on September 10, 1996. Although Pier 1 offered Godwin
a job as a Mailroom Attendant, at the same rate of pay and
benefits he enjoyed before his injury, Godwin rejected the offer.

                                  3
for the Northern District of Texas alleging that Pier 1 had

violated Title VII of the Civil Rights Act of 1964.       See 42

U.S.C. §§ 2000e-2000e-17.   Specifically, Godwin’s complaint

alleged that Pier 1 had discriminated against him by filling his

position with another employee and denying him any other position

in the company, thus preventing him from returning to work.

Godwin also alleged that one of his supervisors, Mel Hasty

(“Hasty”), had made disparaging remarks about minorities and that

these remarks indicated that Pier 1 had engaged in intentional

discrimination.

     Pier 1 moved for summary judgment.       After examining the

record and the parties’ briefs, the district court determined

that Godwin had failed to establish a prima facie case of

intentional discrimination because, at the time of the employment

actions Godwin complained of, he was physically unable to return

to work.   As a result, Godwin could not show that he was

qualified for the positions.   See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Davis v. Chevron U.S.A., Inc., 14

F.3d 1082, 1087 (5th Cir. 1994).       The district court entered

judgment in favor of Pier 1 and dismissed Godwin’s complaint

without prejudice.   Godwin timely appeals.



                                II.

     This court reviews a grant of summary judgment de novo,

applying the same standards as the court below.       See Matagorda

                                   4
County v. Law, 19 F.3d 215, 217 (5th Cir. 1994).      Summary

judgment is proper when there is no genuine issue of material

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

law.       See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

317 (1986).      A dispute regarding a material fact is “genuine” if

the evidence is such that a reasonable jury could find in favor

of the nonmoving party.       See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

       Godwin initially argues that the district court erred in

granting summary judgment because he had presented direct

evidence, in the form of statements allegedly made by Hasty, of

unlawful employment discrimination by Pier 1.      According to

Goodwin, Hasty told another employee that he did not want Godwin

back and that he did not want to hire any more “blacks” because

“those people file workers’ compensation claims.”      Hasty

allegedly went on to say that Godwin was “a prime example of

that.”       Godwin concludes that these comments, coupled with Pier

1's failure to hold open his position, raise genuine issues of

material fact regarding unlawful discrimination.2      We are


       2
      Pier 1 halfheartedly attempts to argue that Godwin waived
any argument regarding this issue because he failed to make such
an argument in opposition to Pier 1's motion for summary
judgment. Godwin’s response to Pier 1's motion for summary
judgment, however, specifically mentions Hasty’s derogatory
comments. Additionally, in his brief accompanying that response,
Godwin argues that Hasty’s comments, combined with other
evidence, shows that he was discriminated against. As a result,
Godwin did not waive appellate consideration of whether Hasty’s

                                     5
unpersuaded that these comments, if made, are sufficient to

support a claim of unlawful employment discrimination.

     “Direct evidence of discrimination is evidence which, if

believed, would prove the existence of a fact (i.e., unlawful

discrimination) without any inferences or presumptions.”

Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993)

(citations omitted).   In Boyd v. State Farm Ins. Cos., 158 F.3d

326, 330 (5th Cir. 1998), we stated that a Title VII plaintiff

must show a causal connection between the allegedly

discriminatory remarks and the adverse employment action.     Godwin

has failed to show any connection between Hasty’s statements and

Pier 1's failure to hold his job open until he returned to work.

To the contrary, the evidence shows that Hasty and Pier 1 made

every effort to keep Godwin’s position open for him, including

keeping the position available for nearly two months after

Godwin’s FMLA job-protected leave expired.

     In addition, pursuant to his doctors orders, Godwin could

not return to light duty work until March 1996, and he was not

fully released to work until late April 1996. The employment

actions that Godwin complains of all took place before he was

given a doctor’s release to do light duty work.   Setting aside

the fact that Godwin failed to demonstrate a causal connection

between Hasty’s remarks and the alleged employment



remarks constitute direct evidence of unlawful discrimination.

                                 6
discrimination, we fail to see how any of Hasty’s personal biases

could have prevented Godwin from returning to work when his

medical orders prevented him from doing so.

       Finding that Godwin has failed to present any direct

evidence of discrimination, we look to see whether he has

presented evidence creating an inference of intentional

discrimination.       See McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).    To create an inference of intentional

discrimination, a plaintiff must first establish a prima facie

case by showing 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 to fill the position.       See McDonnell Douglas, 411

U.S. at 802.    If the plaintiff establishes a prima facie case,

the burden shifts to the employer to show that the challenged

employment action was taken for legitimate, nondiscriminatory

reasons.    See id.    If the employer proffers such reasons, the

burden returns to the plaintiff to show that the proffered

reasons are mere pretext for unlawful discrimination.       See id. at

804.

       We agree with the district court that Godwin has failed to

establish a prima facie case.      Specifically, Godwin has failed to

show that he sought and was qualified for an available position.

We note that the challenged employment action -- the filling of

                                    7
the Lead Copy Center Technician, Lead Mailroom Attendant, and

Mailroom Attendant positions -- took place when Godwin was on

medical leave and had not been released to return to work.    As

the district court noted, if a Title VII plaintiff is physically

unable to perform the job applied for, he is not qualified for

the position.   See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082,

1087 (5th Cir. 1994).   As a result, Godwin cannot show that he

was qualified for the positions in question and thus cannot

establish a prima facie case of discrimination.

     Furthermore, throughout Godwin’s brief he complains that,

once he was released to return to work, Pier 1 never contacted

him about returning.    Inexplicably, Godwin contends that this

supports his proposition that Pier 1 discriminated against him

and helps establish a prima facie case of discrimination.    To

establish a prima facie case, the plaintiff must demonstrate not

only that he was qualified for a job, but that he “sought” the

position.   See Grimes v. Texas Dept. of Mental Health and Mental

Retardation, 102 F.3d 137, 140 (5th Cir. 1996).   Pier 1 had no

duty to contact Godwin about returning to work.    Rather, the

burden was upon Godwin to inform Pier 1 of his medical release

and to seek a position with the company -- steps he failed to

take prior to his administrative discharge.3

     3
       In certain cases we may excuse a plaintiff’s failure to
apply for a job if he demonstrates that he was deterred from
applying due to a “known and consistently enforced policy of
discrimination.” Shackelford v. Deloitte & Touche, LLP, 190 F.3d

                                  8
                              III.

     Godwin has wholly failed to create a genuine issue of fact

regarding his claims of discrimination.   He has neither

introduced any direct evidence of discrimination on the part of

Pier 1, nor created an inference of unlawful discrimination.

Therefore, we AFFIRM.




398, 406 (5th Cir. 1999). Godwin has failed to point to any
evidence that Pier 1 had such a policy.

                                9
