     Case: 15-60087      Document: 00513133532         Page: 1    Date Filed: 07/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60087                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 29, 2015
EDWARD STEWART,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

TREASURE BAY CASINO,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:12-CV-197


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Edward Stewart appeals the district court’s order
granting summary judgment for Defendant–Appellee Treasure Bay Casino.
Stewart argues that the district court erred by finding he was unable to show
that Treasure Bay’s proffered legitimate, non-discriminatory reason for his




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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termination was pretext for unlawful racial discrimination. For the following
reasons, we AFFIRM the judgment of the district court.
           I.     FACTUAL AND PROCEDURAL BACKGROUND
       Edward Stewart was hired by Treasure Bay Casino to serve as a Security
Officer on July 4, 2008. He was promoted to the position of Security Lead
Officer on August 11, 2008. Treasure Bay’s Security Director, Kenneth Key,
was responsible for Stewart’s promotion. Treasure Bay’s Human Resources
Director, Joe Thornton, also played a role in the promotion. For the first two
years of his employment, Stewart received positive performance evaluations.
       However, beginning in February 2010, Stewart was subject to a number
of disciplinary actions. On approximately February 17, 2010, Stewart received
an Action Notice for “direct[ing] . . . subordinates to ignore established policy
by telling them not to give . . . requesting employees” escorts to Treasure Bay’s
parking lot. This Action Notice was classified as a “Counseling Notice,” which
is the first step of Treasure Bay’s progressive discipline process. 1 On May 12,
2010, Stewart received a second Action Notice for instructing the security
officers under his supervision “not to administer [an] ID check” requested by
Treasure Bay’s surveillance department. This Action Notice was classified as
a “Written Warning,” which is the second step of Treasure Bay’s progressive
discipline process.      Additionally, a written letter from Key was placed in
Stewart’s personnel file, with the subject line “Disorderly Conduct.” Key’s
letter explained that on December 28, 2010, Stewart entered the security
supervisor’s office in an intoxicated state.            The letter also noted that on
December 29, 2010, Stewart was asked to leave the Treasure Bay premises




       1Treasure Bay’s Employee Handbook makes clear that employee discipline can begin
at any step of the progressive discipline process. It further states that “Treasure Bay is not
bound to progressive discipline in all cases.”
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                                 No. 15-60087
because he was intoxicated. The letter prohibited Stewart from being present
at Treasure Bay after working hours.
      On December 31, 2010, Stewart was issued another Action Notice,
classified as a “Final Warning,” which is the third step of Treasure Bay’s
progressive discipline process. The Action Notice explained that there had
been “multiple instances of Security Lead Edward Stewart conducting himself
in an unprofessional manner.”      It noted that “[a]ny further violations of
[Treasure Bay’s] procedures could lead to further corrective actions including
. . . separation from the company.”        Underlying this Action Notice were
multiple reports of Stewart’s misconduct.      For example, on approximately
December 27, 2010, Brian Salas, a security officer who reported to Stewart,
sent a letter to Key expressing his “grave concerns . . . for the unfair and
inconsistent treatment,” that Stewart had subjected him to. Salas reported
that Stewart repeatedly mispronounced his last name and when asked to
pronounce it correctly, Stewart said “this is America and I’ll say your name
[however] I want.”     Key also received an email from April Pritt, another
security officer under Stewart’s supervision, who complained that Stewart
“intentionally goes out of his way to be rude,” and that she “did nothing to
deserve [this treatment] except decline his offer to go on a date.” Pritt also
noted that Stewart “treats Brian Salas . . . terribly.”      Pritt concluded by
commenting that Stewart is “extremely rude, arrogant, and not a pleasure to
work for at all,” and that he “has made us . . . hate coming to work.” A few
months later, Key received additional complaints about Stewart from both
Salas and Pritt.     Finally, on March 30, 2011, Key received a letter from
Treasure Bay employee David Sloan, which stated that Sloan felt that Stewart
“is very unprofessional and spends more time flexing his arms than worrying
about protecting this [c]asino.” Sloan reported that Stewart treated Salas


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                                   No. 15-60087
poorly and that Stewart had previously stated that he thought he could do a
better job as security director.
      As a result of these complaints, Key decided to transfer Stewart to a
different shift, which would have allowed Stewart to benefit from the
supervision of a different security supervisor.      Key intended for the shift
change to take effect at the beginning of May 2011. However, before the shift
change could take place, Key received reports of another altercation between
Stewart and Salas. Pritt reported that on April 19, 2011, Salas asked Stewart
to pronounce his name correctly during a security briefing. Pritt explained
that after Salas made this request, Stewart told Salas “to ‘get out and go talk
to the wall.’” According to Pritt, Stewart then “slammed the door in [Salas’]
face.” Pritt’s characterization of the incident was corroborated by Elizabeth
Bieller and Scottie Loree, who both served as Treasure Bay security officers.
      After discussing Stewart’s behavior with Thornton and Treasure Bay
Chief Operating Officer Susan Varnes, Thornton determined that Stewart’s
conduct had violated Treasure Bay’s Crewmember Handbook. He further
concluded that Stewart should be terminated because he had repeatedly
engaged in unprofessional conduct. Stewart was terminated on April 22, 2011.
Varnes made the ultimate termination decision.
      On June 20, 2012, Stewart filed a pro se complaint in the United States
District Court for the Southern District of Mississippi and alleged that he had
been “retaliated and discriminated against because of [his] race.”             He
purported to bring claims against “Thornton (Treasure Bay).” The district
court granted Thornton’s motion to dismiss; however, it construed Stewart’s
complaint to also allege claims against Treasure Bay. Stewart subsequently
withdrew his retaliation claim against Treasure Bay. On January 1, 2015, the




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                                     No. 15-60087
district granted Treasure Bay’s motion for summary judgment on Stewart’s
remaining Title VII discrimination claim. Stewart’s timely appeal followed. 2
                      II.       STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo,
applying the same standard on appeal as that applied below.”                   Rogers v.
Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A genuine dispute as to a material fact exists ‘if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’”       Rogers, 755 F.3d at 350 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). We construe “all facts and inferences in
the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d
260, 266 (5th Cir. 2010) (internal quotation marks omitted). Nevertheless, a
summary judgment motion may not be defeated by “conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence.”              Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal quotation marks omitted).
                             III.       DISCUSSION
      It is “unlawful for an employer to fire an employee because of the
employee’s race.” Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.
2011) (citing 42 U.S.C. § 2000e–2(a)(1)). This court applies “the modified
McDonnell Douglas approach in racial discrimination cases under Title VII.”
Id. (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004);
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In order to survive



      2 Stewart only challenges the district court’s grant of summary judgment on his Title
VII discrimination claim against Treasure Bay. He does not challenge the district court’s
decision to grant Thornton’s motion to dismiss or the district court’s finding that he had
withdrawn his retaliation claim against Treasure Bay.
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                                  No. 15-60087
summary judgment under that approach, the employee “must first present
evidence of a prima facie case of discrimination.” Davis v. Dallas Area Rapid
Transit, 383 F.3d 309, 317 (5th Cir. 2004). To establish a prima facie case,
Stewart must show: (1) that he is a member of a protected class; (2) that he
was qualified to be a lead security officer; (3) that he was fired; and (4) that he
was replaced by someone outside of his protected class. Vaughn, 665 F.3d at
636. If a prima facie case is established, the burden shifts to Treasure Bay to
articulate a legitimate, non-discriminatory reason for firing Stewart. Id.; see
also McDonnell Douglas, 411 U.S. at 802. Once Treasure Bay presents “a
legitimate rationale for its employment action, the inference of discrimination
disappears and the plaintiff must present evidence that the employer’s
proffered reason was mere pretext for racial discrimination.” Davis, 383 F.3d
at 317. In order to establish pretext, Stewart must show that Treasure Bay’s
proffered reason for his termination “is false or unworthy of credence.”
Vaughn, 665 F.3d at 637 (internal quotation marks omitted).
      Here, the district court, assuming that Stewart was able to establish a
prima facie case, determined that Stewart failed to establish a genuine issue
of material fact that Treasure Bay’s legitimate, non-discriminatory reason for
his termination was pretextual.       We agree.     The record establishes that
Treasure Bay received numerous complaints, from a number of different
Treasure Bay employees, about Stewart’s poor job performance. The record
also reflects that Treasure Bay relied on these complaints and Stewart’s
previous Action Notices to determine that he had engaged in unprofessional
conduct. Clearly, Treasure Bay had a legitimate, non-discriminatory reason
for Stewart’s termination.
      Stewart argues that Treasure Bay’s proffered explanation was pretext
for unlawful race discrimination. However, nothing in the record suggests
Treasure Bay’s explanation was prextual, such as evidence that he was subject
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                                 No. 15-60087
to disparate treatment, Vaughn, 665 F.3d at 637, or evidence that Treasure
Bay’s explanation was not “the real reason” for Stewart’s termination, id.
(internal quotation marks omitted). Importantly, Stewart does not challenge
the record evidence which supports Treasure Bay’s position that he was subject
to numerous reports of misconduct. Stewart contends that Treasure Bay’s
failure to interview him and other African-American employees during its
investigation is evidence of pretext.       However, Stewart has produced no
evidence that Treasure Bay’s failure to interview other African Americans was
anything but coincidental.      Furthermore, we have never required an
employer’s investigation to be perfect; it must only be non-discriminatory. See
Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).
Moreover, the record shows that Treasure Bay repeatedly discussed with
Stewart the complaints about his conduct throughout the duration of his
employment, albeit not immediately before he was terminated.              Because
Stewart has provided no evidence other than his own conclusory statements
that Treasure Bay’s reason for his termination was pretextual, the district
court’s grant of summary judgment for Treasure Bay was proper. See Jackson
v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010) (“[An employee’s]
assertion of innocence alone does not create a factual issue as to the falsity of
[the employer’s] proffered reason for terminating him.”).




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                             No. 15-60087
                      IV.      CONCLUSION
    For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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