                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                       February 28, 2005

                                                                        Charles R. Fulbruge III
                                                                                Clerk
                                      No. 04-30558


                             JOSEPH HOWARD KENNERSON

                                         Plaintiff-Appellant,


                                           v.

                 BILLY GUIDRY; ST. MARTIN PARISH SCHOOL BOARD
                                     Defendants-Appellees



                 Appeal from the United States District Court
                     For the Western District of Louisiana
                                  (02-CV-2541)




Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

       Plaintiff-Appellant        Joseph        Howard    Kennerson   brought     this

action against his former supervisor, Billy Guidry, and his former

employer, St. Martin Parish (collectively, “Appellees”), alleging

that       his   firing   was   the    product     of    race   discrimination      and

retaliation in violation of Title VII of the Civil Rights Act 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this opinion should not be published and is not precedent except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.

                                           1
1964.2      The district court found that Kennerson failed to rebut

Appellees’ legitimate non-discriminatory reason for terminating his

employment and granted summary judgment in Appellees’ favor. After

reviewing the record and the parties’ arguments, we affirm the

district court.

I.   Background

     Kennerson, an African-American, was hired by St. Martin Parish

School Board in May of 1996, upon the recommendations of the

superintendent and Billy Guidry, Kennerson’s soon-to-be supervisor.

Kennerson’s new position was as the St. Martin Parish school system

Senior Computer Programmer.

     When Kennerson took the St. Martin Parish job, he knew that he

was not familiar with the computer systems or programs used by the

parish school system.      Between 1997 and 2002, Appellees grew

increasingly dissatisfied with Kennerson’s performance.     Despite

Appellees’ provision of several formal opportunities for Kennerson

to remedy his deficiencies, Kennerson was terminated in July of

2002.    A person outside Kennerson’s protected class was hired to

fill the St. Martin Parish School Board Senior Computer Programmer

position.

     Prior to his termination, and during the several attempts at

remediation, Kennerson filed two complaints of race discrimination

and retalitation with the Equal Employment Opportunity Commission


     2
        42 U.S.C. § 2000(e).

                                  2
(“EEOC”).   After Kennerson was terminated, and after he received

his right to sue letter, he timely filed this suit in district

court.

      Upon motion by Appellees, the district court granted summary

judgment against Kennerson on both his Title VII discrimination and

retaliation claims.    Kennerson timely appeals.

II.   Standard of Review

      This court reviews a grant of summary judgment de novo, and

applies the same standard as the district court.3    District courts

properly grant summary judgment if, viewing the facts in the light

most favorable to the nonmovant, the movant shows that there is no

genuine issue of material fact and that the movant is entitled to

judgment as a matter of law.4

III. Analysis and Conclusions

      Like the district court, we assume for the purposes of this

appeal that Kennerson has established both of his prima facie

claims of Title VII race discrimination and retaliation arising

from his termination.      Also like the district court, we conclude

that Kennerson has failed to rebut the Appellees’ contention that

his termination was the result of a legitimate non-discriminatory



      3
      Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313
F.3d 295, 297 (5th Cir. 2002) (citing Potomac Ins. Co. v. Jayhawk
Med. Acceptance Corp., 198 F.3d 548, 550 (5th Cir. 2000)).
      4
       FED. R. CIV. P. 56(c).

                                   3
reason,    viz.,    Appellees’      dissatisfaction      with   Kennerson’s

performance.       Under     the   McDonnell-Douglass5    burden   shifting

paradigm for Title VII discrimination and retaliation claims,6 this

failure entitles Appellees to summary judgment.7

     First, there is no question that Appellees have articulated

their legitimate non-discriminatory reason for the termination with

sufficient clarity to afford Kennerson a realistic opportunity to

show that the reason was pretextual.8         Second, Kennerson does not

present any summary judgment evidence to dispute the Appellees’

legitimate non-discriminatory reason for his termination.           His own

deposition and affidavit testimony concedes that he had difficulty

performing his job and that several of his co-workers were rather

disappointed with his performance.           More importantly, Kennerson

does not point to any record evidence showing a non-African-

American   was     treated     differently    by   Appellees    under   any

substantially similar circumstance.

     Ultimately, Kennerson only offers a subjective belief that his

termination was motivated by race discrimination and retaliation


     5
      411 U.S. 792 (1973).
     6
      Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th
Cir. 2000) (“As this Court has held, the McDonnell Douglas test
applied to Title VII disparate treatment cases is also applicable
to Title VII unlawful retaliation cases.”).
     7
      McDonnell Douglas Corp. v. Green, 411 U.S. at 802-03.
     8
      Burdine v. Tex. Dep’t of Cmty. Affairs, 450 U.S. 248, 255-56,
67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

                                      4
because his problems allegedly began after he “clashed” with a

white co-worker and he was fired after he filed complaints with the

EEOC.     Not only is a Title VII employment discrimination or

retaliation plaintiff’s subjective belief an insufficient defense

to a summary judgment motion,9 in this case, that subjective belief

is refuted by the undisputed record evidence showing that: (1)

performance   deficiencies   were   being     documented   by   Kennerson’s

supervisor two years before Kennerson’s clash and well before he

filed his first EEOC complaint; (2) the pre-clash, and pre-EEOC

complaint performance deficiencies are of the same variety as those

deficiencies documented post-clash and post-EEOC complaint; and,

(3) there was no marked increase in the documented deficiencies

following the clash or the filing of the EEOC complaints.

     Kennerson does not argue that Appellees’ summary judgment

evidence regarding their legitimate non-discriminatory reason was

manufactured, post-hoc, in order to justify firing him.10 Moreover,

though    Kennerson   contends   that   his   performance   had    in   fact



     9
      Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (explaining that “conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to
satisfy the nonmovant’s burden” at the summary-judgment stage of an
employment-discrimination case).
     10
      Cf. Evans v. Houston, 246 F.3d 344, 355-56 (5th Cir.
2001)(finding lack of certain documentation and suspicious timing
on other documentation along with a plaintiff’s allegations that
the documents were back-dated to support a termination decision
created a genuine issue of material fact as to whether employer’s
legitimate non-discriminatory reason was pretext).

                                    5
improved, and that Guidry and the School Board incorrectly believed

he   was     underperforming,    “even       an    incorrect    belief    that   an

employee’s performance is inadequate constitutes a legitimate, non-

discriminatory reason [and] . . . a dispute in the evidence

concerning [the employee’s] job performance does not provide a

sufficient basis for a reasonable factfinder to infer that [the

employer’s] proffered justification is unworthy of credence.”11

      Therefore,     because    Kennerson         offers   no   summary   judgment

evidence to substantiate his subjective belief that his termination

was due to discriminatory animus or retaliation, he is unable to

raise a genuine issue of material fact as to whether the Appellees’

proffered legitimate non-discriminatory reason for the termination

decision was pretext.           Accordingly, summary judgment for the

Appellees is warranted and the district court is AFFIRMED.




      11
           Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir.
1991).

                                         6
