                    United States Court of Appeals,

                              Fifth Circuit.

                               No. 94-10825.

                 Robert MAYBERRY, Plaintiff-Appellant,

                                      v.

          VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.

                              June 28, 1995.

Appeal from the United States District Court for the Northern
District of Texas.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

     RHESA HAWKINS BARKSDALE, Circuit Judge:

     Robert Mayberry challenges an adverse summary judgment on his

employment discrimination and retaliation claims.                Because the

summary judgment record fails to create a genuine issue of material

fact (restated, would not permit a reasonable juror to find for

Mayberry on either claim), we AFFIRM.

                                      I.

     Mayberry,    who   is   black,   has   been   employed    as    a   machine

operator by Vought Aircraft Company since 1979.                Vought uses a

progressive discipline program consisting of a verbal warning,

written warning, suspension, and termination.           Only disciplinary

actions occurring within the prior year can be considered in

imposing progressive discipline.

     Mayberry    was    disciplined    three   times   in     1991   for   poor

workmanship in violation of the Vought Code of Conduct, receiving

a verbal warning in March, two written warnings in June, and a



                                      1
three-day suspension in December.1         He filed union grievances for

each disciplinary action, resulting, inter alia, in the agreement

that, if he had no further problems with his work until December 2,

1992, he would be reimbursed for his 1991 suspension.2             On October

26, 1992, $8,000 in parts were "scrapped" (damaged) at Mayberry's

work station.   He blamed the damage on a machine malfunction, but

Vought   determined   that   he     was   at   least   partially   at   fault.

Although   Vought   could    have    terminated    Mayberry   (because    his

suspension was less than a year old), it elected instead to suspend

him, in view of his seniority and the fact that it could not

determine the degree to which the machine may have been responsible

for the damage.     Mayberry was suspended for 13 days.

     Mayberry filed this action in September 1993, claiming that

his suspension was on account of his race, and/or in retaliation

for prior discrimination claims brought against Vought and his

participation in demonstrations against Vought for its alleged

discriminatory practices. On Vought's motion for summary judgment,

the district court held that Mayberry failed to establish a prima

facie case for retaliation, and, assuming a prima facie case of

discrimination, that Mayberry was unable to overcome Vought's

defense that the suspension resulted from its honest belief that

     1
      Vought's Code of Conduct states, in relevant part:
"Defective work resulting from inattention to the job, negligence
or carelessness may make it necessary for the company to take
corrective action. Deliberate production of defective work may
result in discharge".
     2
      Mayberry also filed discrimination charges with the Equal
Employment Opportunity Commission, none of which resulted in a
finding of discrimination.

                                      2
Mayberry had violated the work-rule. Accordingly, summary judgment

was entered for Vought.

                                        II.

       Mayberry contests the dismissal of both claims.                   We review

summary judgments de novo, to determine, inter alia, whether any

genuine issue of material fact exists.                  Calpetco 1981 v. Marshall

Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993).                       For that

aspect,    we    draw   all    reasonable         inferences   in    favor    of   the

nonmovant, and ask whether the evidence in the summary judgment

record is such that no reasonable juror could find in favor of the

nonmovant.      Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

       The      analysis      for   Title        VII   discrimination    claims      is

well-known.      See e.g., St. Mary's Honor Ctr. v. Hicks, --- U.S. ---

-, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993);                          Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981);           McDonnell-Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).                     The plaintiff must

establish a prima facie case that the defendant made an employment

decision     that   was    motivated        by     a   protected    factor.        Once

established, the defendant bears the burden of producing evidence

that   its      employment      decision         was   based   on    a   legitimate

nondiscriminatory reason.            The burden then shifts back to the

plaintiff to prove that the defendant's proffered reasons were a

pretext for discrimination.           But, if the defendant has offered a

legitimate nondiscriminatory reason for its action, the presumption


                                            3
of discrimination derived from the plaintiff's prima facie case

"simply drops out of the picture", Hicks, --- U.S. at ----, 113

S.Ct. at 2749, and "the ultimate question [is] discrimination vel

non ".    Id. at ----, 113 S.Ct. at 2753 (citation omitted).

                                  A.

         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".      Green v. Armstrong

Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U.S.

879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980).    Mayberry travels both

avenues, claiming that he was not responsible for the damage, and

that, even assuming he was, similarly situated white employees have

not been disciplined.

                                  1.

         For showing that white employees were not disciplined,

Mayberry's evidence consists of reports from Vought's Accumulated

Scrappage Material record (ASM), read together with Vought's list

of violations of its Code of Conduct.   The ASMs, which record each

instance when a part is scrapped, reveal such instances (for white

and black employees) that have no corresponding entry on Vought's

violations list.    Significantly, the ASMs often include notations

such as "poor workmanship" or "operator error", apparently to

assign cause for the scrappage.    Based on this evidence, Mayberry

urges that white employees were treated differently from him.

     To establish a prima facie case in this manner, Mayberry must


                                  4
show    that     white     employees       were    treated     differently          under

circumstances "nearly identical" to his.                  Little v. Republic Ref.

Co., 924 F.2d 93, 97 (5th Cir.1991);               Smith v. Wal-Mart Stores, 891

F.2d 1177, 1180 (5th Cir.1990);                 Davin v. Delta Air Lines, Inc.,

678 F.2d 567, 570-71 (5th Cir. Unit B 1982).                        In this regard,

Mayberry has offered evidence that white (and black) employees have

scrapped     parts       due,    apparently,      to    operator     error    or     poor

workmanship,      and     were    not    disciplined.         However,       as    Vought

explained, and as Mayberry's own evidence confirms, it does not

even    conduct      a    disciplinary      investigation,          much    less     take

disciplinary action, each time a part is scrapped. The decision to

investigate is based on two factors:                    the history of poor work

performance of the employee, and the cost of the damaged parts.

Mayberry fit both factors; he had several recent instances of poor

work performance, and the amount of damage was $8,000.

       For     whether     a     white    employee       in   "nearly       identical"

circumstances      has     received      treatment      different    from    Mayberry,

reference to the ASMs is of little value.                  Vought notes that they

are not intended, and are not used, for disciplinary purposes.

Rather, they serve only to maintain a record of each part that is

scrapped, and to provide authorization for the part's replacement.

Most importantly, they make no reference to the work history of the

employee or the amount of damage.                      Accordingly, they are not

evidence that white employees in "nearly identical" circumstances




                                            5
have been treated differently.3        To the contrary, Mayberry's own

evidence reveals that, of the 14 other employees in his division

who were disciplined for their workmanship between 1991 and 1994,

none were black—12 were white and two were Hispanic.          In sum,

Mayberry's evidence could not support a reasonable juror's finding

that he was treated differently from white employees.      As such, he

fails to make a prima facie case on this basis.

                                  2.

         On the other hand, a prima facie case may be established by

showing that the plaintiff did not violate the work-rule for which

he was disciplined.     Green, 612 F.2d at 968.     We agree with the

district court that Mayberry created a fact question on whether he

was responsible for the damage.          Although the conclusion from

Vought's investigation was that Mayberry was at least partially at

fault, Vought admitted that "it could have been possible to have

had a software problem".     Furthermore, Mayberry offered evidence

that his machine had malfunctioned in the past.         This, combined

with Mayberry's affidavit statement that he was not at fault,

creates a reasonable question of whether Mayberry violated the

work-rule.

         Vought responds to Mayberry's prima facie case by insisting

that there was no racial motivation in its decision to suspend


     3
      The ASMs may well have been a starting point from which to
build a case that would withstand summary judgment. Mayberry
could have gained information, through discovery, on the
individuals listed in the ASMs, which may well have substantiated
his claim of disparate treatment. Without more, however, the
ASMs are not helpful.

                                   6
Mayberry;    that the decision was based solely on its conclusion,

following an investigation, that Mayberry was at least partially at

fault.    With this, Vought has discharged its burden of production,4

and the burden shifted to Mayberry to prove that Vought's proffered

reason is merely a pretext for discrimination.    Hicks, --- U.S. at

----, 113 S.Ct. at 2749.

         Mayberry attempts to overcome Vought's nondiscriminatory

reason essentially by reasserting his prima facie evidence.       As

discussed below, we conclude that, as a matter of law, Mayberry has

failed to rebut that nondiscriminatory reason.

         The material fact issue on whether Mayberry was at fault

exists only because Vought admitted that, although it found no

evidence of machine error, it could not be certain that some sort

of machine malfunction did not occur.5      Nonetheless, in Vought's

judgment it was clear enough that Mayberry was partially at fault.

And, because it was not certain that Mayberry was completely at

fault, Vought elected only to suspend him, whereas it could have

terminated him.      Even so, Vought's uncertainty, together with

Mayberry's adamant denial, allows for a reasonable question of


     4
      Mayberry appears to suggest that he need not rebut Vought's
nondiscriminatory reason because a fact issue exists on whether
he violated the work-rule. Vought's burden, however, is only one
of production. Hicks, --- U.S. at ----, 113 S.Ct. at 2749. It
"need not persuade the court that it was actually motivated by
the proffered reasons". Id. (quoting Burdine, 450 U.S. at 254,
101 S.Ct. at 1094).
     5
      The data read-out on the machine, which would apparently
have indicated if there had been machine error, "had been
cleared". Mayberry denied having cleared the machine, and
insisted that it lost power and cleared itself.

                                   7
fact.    Mayberry seizes on this fact question as the basis for his

contention     that       Vought's    nondiscriminatory         reason     for    the

suspension is not credible.6               Mayberry misses the mark.              The

question is not whether an employer made an erroneous decision; it

is whether the decision was made with discriminatory motive.

     [E]ven an incorrect belief that an employee's performance is
     inadequate constitutes a legitimate, nondiscriminatory reason.
     We do not try in court the validity of good faith beliefs as
     to an employee's competence. Motive is the issue.... [A]
     dispute in the evidence concerning ... job performance does
     not provide a sufficient basis for a reasonable factfinder to
     infer that [the] proffered justification is unworthy of
     credence.

Little, 924 F.2d at 97.         See also Sherrod v. Sears Roebuck & Co.,

785 F.2d 1312 (5th Cir.1986);             Turner v. Texas Instruments, Inc.,

555 F.2d 1251, 1256 (5th Cir.1977);                 Jones v. Gerwens, 874 F.2d

1534, 1540 (11th Cir.1989).

     Attempting to offer more than the mere dispute over whether

Vought properly       found    him   at    fault,    Mayberry    resorts    to    the

evidence we rejected in the context of his prima facie case:                     that

white    employees    are     treated     differently.        Needless     to    say,

Mayberry's evidence of disparate treatment is no more helpful or

persuasive in the context of rebutting Vought's nondiscriminatory

explanation.         As    noted,    Mayberry   has     not   offered      evidence

     6
      In their briefs, the parties argued at length over whether
a plaintiff may rebut a defendant's nondiscriminatory reason by
showing only that the reason is not credible, without offering
proof, in addition to the prima facie case, of discriminatory
motive. Our en banc court may soon consider this issue. See
Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir.1994), reh'g
en banc granted, 49 F.3d 127 (5th Cir.1995). Because we conclude
that no reasonable juror could find that Vought's
nondiscriminatory reason was not credible, we do not reach this
issue.

                                          8
sufficient       to     support     a    finding    that      white    employees    in

circumstances         "nearly     identical"       to   his    have    been    treated

differently.          See Little, 924 F.2d at 96-97 (rejecting rebuttal

evidence of disparate treatment because circumstances were not

"nearly identical").

         Finally,        Mayberry       appears    to   suggest       that    Vought's

nondiscriminatory explanation is suspect because, according to

Mayberry, Vought has a propensity for discrimination because of a

finding by the Department of Labor that Vought had occasionally

discriminated on the basis of race in its promotion decisions.7                     We

will not entertain such a suggestion.               According to his affidavit,

Mayberry has brought, or been a party to, at least six prior

charges of discrimination against Vought, none of which have

resulted in a finding of discrimination against Mayberry.                      Just as

we cannot assume that Mayberry's past conduct suggests a propensity

to file false charges, we cannot assume that Vought's past conduct

suggests it has discriminated against Mayberry.8

     In sum, based on the summary judgment record, a reasonable

juror    could    not     conclude      that    Mayberry      received   the   13-day

suspension because of his race.                 Therefore, summary judgment on


     7
      Mayberry also asserts that his workmanship violations began
to issue only after he joined in a class action discrimination
complaint against Vought, and after his participation in
picketing against it.
     8
      We note that the Department of Labor found only individual
instances of discrimination in promotion decisions, and "[t]hese
instances did not occur in any pattern or practice that would
suggest Blacks, as a class, were treated differently because of
their race".

                                            9
this claim was proper.

                                        B.

         A prima facie case of retaliation exists if the plaintiff

establishes that (1) he participated in statutorily protected

activity, (2) he received an adverse employment action, and (3) a

causal connection exists between the protected activity and the

adverse action.      Armstrong v. City of Dallas, 997 F.2d 62, 65 n. 3

(5th Cir.1993).      The parties agree that Mayberry meets the first

two elements.       Vought contends, however, and the district court

agreed, that Mayberry failed to create a material fact issue on the

existence of a causal connection between his protected activity and

his suspension.

         Mayberry    asserts     that   the   timing   of   the   suspension   in

relation to his protected activity establishes the required nexus.9

The timing of the adverse employment action can be a significant,

although not necessarily determinative, factor.              See e.g., Shirley

v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992) (discussing

evaluation of "timing" evidence).             In this case, however, it is

unclear that the timing of the suspension benefits Mayberry's case.

         According    to   his   affidavit,     Mayberry    first   engaged    in

protected activity (filed an EEOC charge) sometime "in the mid

1980's", and continued, with regularity, in protected activity



     9
      Mayberry also rests a prima facie case on the basis of the
evidence offered for his discrimination claim. To the extent
that such evidence may be relevant to a prima facie case for
retaliation, we find it insufficient, as discussed in part II.A.,
supra.

                                        10
through 1992.10     In this regard, there is nothing inherently

"suspicious" about a 13-day suspension that occurs at least several

years after protected activity begins.      Indeed, one might argue

that the "timing" here is evidence against retaliation.        We need

not go that far.     Suffice it to say that we find insufficient

evidence to support a finding that "but for" Mayberry's protected

activity, he would not have received the 13-day suspension.          See

Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984)

(noting that prima facie retaliation requires "but for" causation).

     Furthermore, assuming arguendo that Mayberry established a

prima facie case, he fails, for summary judgment purposes, to

overcome Vought's    legitimate   nondiscriminatory   reason   for   the

suspension—its belief that Mayberry violated the work-rule.          The

analysis in part II.A, supra, applies here.

                                  III.

     For the foregoing reasons, the judgment is

     AFFIRMED.




     10
      It is unclear when Mayberry filed his first EEOC
complaint. Mayberry states in his affidavit that he had filed
EEOC complaints "in the mid 1980's". Mayberry filed an EEOC
charge in connection with his delayed promotion to Class B
machine operator. He again filed an EEOC charge in connection
with his delayed promotion to Class A machine operator. The
class A promotion occurred in 1988; therefore, his first EEOC
complaint (if it was for his class B promotion) must have
occurred prior to 1988. Mayberry also engaged in protected
activity (discrimination charges and/or picketing against Vought)
in 1988, 1990, 1991, and 1992.

                                   11
