                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                                   In the                                  August 4, 2004
                          United States Court of Appeals                              Charles R. Fulbruge III
                                        for the Fifth Circuit                                 Clerk
                                          ___________________

                                              m 03-60929
                                            Summary Calendar
                                          ___________________



                                         JOHNNY TROTTER, JR.,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                          BPB AMERICA, INC.,
                                   DOING BUSINESS AS BPB CELOTEX,

                                                                Defendant-Appellee.


                                          ___________________

                              Appeal from the United States District Court
                                for the Southern District of Mississippi
                                            m 4:02-CV-74
                                        ___________________



Before SMITH, DEMOSS, and STEWART,                          Plaintiff Johnny Trotter, Jr., appeals pro se
  Circuit Judges.                                       a summary judgment in his title VII suit, main-
                                                        taining that he has established a genuine issue
JERRY E. SMITH, Circuit Judge.*                         of fact regarding whether the stated reason for
                                                        his discharge by his employer, BPB America,
                                                        Inc., doing business as BPB Celotex (“BPB”),
                                                        was mere pretext. We affirm.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-                               I.
lished and is not precedent except under the limited      BPB hired Trotter, who is black, in July
circumstances set forth in 5TH CIR. R. 47.5.4.          1998 as a laborer and then as an inspector. As
BPB suffered periodic cutbacks and layoffs,            Trotter sued, seeking recovery under title VII,
Trotter was frequently reassigned, and his po-         42 U.S.C. § 2000e-2. After discovery, BPB
sition fluctuated. In October 2001, he learned         successfully moved for summary judgment.
that because of his lack of seniority, he was on
the list of employees to be laid off. In prepa-                               II.
ration for the layoff, he was reassigned from              Summary judgment is appropriate only
inspector to floor sweeper and laborer.                where there are no genuine issues of material
                                                       fact and the moving party is entitled to judg-
   On October 17, 2001, Trotter had a verbal           ment as a matter of law. See FED. R. CIV. P.
dispute with the union president, Roger Wil-           56(c). The party seeking summary judgment
liams, regarding his reassignment. The dispute         carries the burden of demonstrating that there
escalated, verbal threats were made, and,              are no actual disputes as to any material fact.
according to Williams, Trotter shoved him.             If the nonmovant then fails to set forth specific
Trotter flatly denies ever touching Williams.          facts to support his allegations, summary
Following the altercation, both men were tak-          judgment is appropriate. Celotex Corp. v.
en into the office of plant superintendent Berry       Catrett, 477 U.S. 317, 325 (1986). The non-
Smith and interviewed. Smith did not take any          movant must “go beyond the pleadings . . . and
disciplinary action, because there were no             designate specific facts showing that there is a
witnesses, though both men were warned                 genuine issue for trial.” Id. at 324.
about causing further disturbances and then
were ordered to return to work.                            Summary judgment is appropriate even if
                                                       the nonmovant brings forth evidence in sup-
    Shortly after leaving his office, Smith no-        port of its allegations, if the evidence is insuf-
ticed Williams, Hicks, and Trotter arguing             ficient for a reasonable jury to find for that
once again on the floor. Smith intervened and          party. “The mere existence of a scintilla of
separated them, ordering them to return to             evidence in support of plaintiff’s position” is
work. Williams and Hicks complied, but                 insufficient. Anderson v. Liberty Lobby, Inc.,
Trotter began to argue with Smith, who then            477 U.S. 242, 252 (1986). We review a sum-
ordered Trotter to come with him out of the            mary judgment de novo. Meditrust Fin. Serv.
plant; yet again, Trot ter ignored Smith’s in-         Corp. v. Sterling Chem., Inc., 168 F.3d 211,
struction. Trotter admits cursing at and insult-       213 (5th Cir. 1999).
ing Smith. Ultimately, they had a physical al-
tercation and had to be separated by third par-                              III.
ties. A dispute of fact exists regarding which            A plaintiff alleging racial discrimination
man was the initial physical aggressor, though         under title VII in the absence of direct evi-
each admits to having hit the other at some            dence must make out a prima facie case of
point. Immediately following the fight, Smith          discrimination. Molnar v. Ebasco Construc-
fired Trotter.                                         tors, Inc., 986 F.2d 115, 118 (5th Cir. 1993).
                                                       Plaintiff can make out a prima facie case if he
   Believing himself to be the victim of racial        proves that he (1) was a member of a pro-
discrimination, Trotter timely filed a charge          tected class; (2) was qualified for the position;
with the Equal Employment Opportunity                  (3) suffered adverse employment action; and
Commission, which issued a right-to-sue letter.        (4) was replaced by someone outside the pro-


                                                   2
tected class or that similarly situated individu-           both of which are grounds for termination in
als outside the protected class were treated                BPB’s General Rules of Conduct, which Trot-
more favorably. Urbano v. Cont’l Airlines,                  ter read and signed in 1998. The timing and
Inc., 138 F.3d 204, 206 (5th Cir. 1998).                    circumstances surrounding Trotter’s firing
                                                            support BPB’s contention that Trotter was
   Under the framework of McDonnell Doug-                   fired for insubordination rather than on ac-
las Corp. v. Green, 411 U.S. 792, 802 (1973),               count of his race.3
once a plaintiff has established a prima facie
case, the burden of production is on the defen-                 With BPB’s having offered this legitimate
dant to “articulate some legitimate, nondis-                reason for termination, the burden returned to
criminatory reason” explaining defendant’s                  Trotter to demonstrate that the reason was
conduct.1 If defendant is able to articulate                pretext. Trotter may meet this threshold by
such a reason, the plaintiff must make a show-              proving that an issue of material fact exists
ing sufficient for a jury to find that the reason           through circumstantial evidence (i.e., by dem-
was mere pretext and discrimination was the                 onstrating that an issue exists that BPB’s prof-
true motivation. Bodenheimer v. P.P.G. In-                  fered reason is a pretext for discrimination, or
dus., Inc., 5 F.3d 955, 957 (5th Cir. 1994). If             by providing direct evidence of discrimina-
a plaintiff fails to satisfy his burden of proof in         tion). See Okoye v. Univ. of Tex. Houston
either the first or third step, his claim fails as a        Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir.
matter of law.                                              2001). The district court found that Trotter
                                                            had failed to offer any real evidence and thus
   The district court found that Trotter had                failed to meet his burden of production in step
established a prima facie case for discrimina-              three.
tion, so the burden shifted to BPB to proffer a
nondiscriminatory reason for termination.2                      Trotter objects in his pro se brief, maintain-
BPB maintains that Trotter was fired because                ing that several comments Smith made during
of insubordination and fighting with his boss,              and after his employment, and Smith’s refusal
                                                            to fire white workers who engaged in fighting,
                                                            provide sufficient evidence to call into ques-
   1
    The burden-shifting analysis of McDonnell               tion BPB’s rationale. Trotter does not provide
Douglas was reaffirmed in Reeves v. Sanderson               sufficient evidence to cast doubt on BPB’s
Plumbing Prods. Inc., 530 U.S. 133 (2000).                  reason for its conduct.
   2
     The district court found that Trotter was able
to establish that, as a black employee, he was a
member of a protected class and was qualified for
the position for which he was discharged. Trotter
                                                               3
also established a genuine fact issue as to whether              Trotter was fired immediately following the
his white superintendent was treated more favor-            altercation with his boss, which occurred on the
ably (because Smith, too, participated in the               same day as his altercation with Williams, a senior
brawl). Although there is a question whether                employee. Witnesses all testified that Trotter was
Smith was “similarly situated,” we agree with the           unusually aggressive on the day he was fired. A
district court that, when read in a light most favor-       review by plant manager (and Smith’s own boss)
able to Trotter, existing evidence establishes a pri-       Terry Stoddard found that the firing was ap-
ma facie case of discrimination.                            propriate and comported with company policy.

                                                        3
                         A.                                    For a comment in the workplace to provide
    At trial and on appeal, Trotter has at-                 sufficient evidence for discrimination, it must
tempted to cast doubt on BPB’s alleged                      be “(1) related [to the protected class of per-
grounds for his termination by proof of state-              sons of which plaintiff is a member]; (2) proxi-
ments allegedly made by Smith that might                    mate in time to the termination; (3) made by an
evince racial bias. Firstly, Trotter alleges that           individual with authority over the employment
Smith referred to the operator of a secondary               decision at issue; and (4) related to the
saw, Miguel Collins, as a “straw boss.” Smith               employment decision at issue.” Krystek v.
testified in his deposition that he used the term           Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir.
to refer to his floor lead persons or operators.4           1999). Neither of Smith’s comments satisfies
Secondly, Trotter alleges that when he ran into             that standard.
Smith over a year later at a local restaurant, he
overheard Smith mumble the “‘n’-word” in                        Smith’s use of the term “straw boss” was
passing. Smith denies having made such a                    never made in connection with Trotter, and it
remark.                                                     was not made in a manner that related to
                                                            Smith’s decision to terminate Trotter. Fur-
    In determining whether there is a genuine               thermore, Trotter offers no evidence as to
issue of material fact, evidence and inferences             when the comment was made, but only that it
must be drawn in the light most favorable to                was made. Smith’s use of the “n-word,” al-
the non-moving party. Daniels v. City of Ar-                though highly offensive and never appropriate,
lington, Tex., 246 F.3d 500, 502 (5th Cir.                  also constitutes nothing more than a stray re-
2001). Therefore, let us assume arguendo that               mark, because it occurred well over a year af-
both of these incidents did occur and that                  ter Trotter’s termination (and therefore cannot
Smith meant “straw boss” to be a racial slur.               be said to be proximate in time), nor was the
Even reading the evidence in a light most fa-               comment made in the work place or was in any
vorable to Trotter, these offensive remarks                 way related to the employment decision at
constitute nothing more than “stray remarks”                issue. Comments that are “vague and remote
and cannot be considered sufficient to meet                 in time” are insufficient to establish discrimi-
Trotter’s burden of production, nor do they                 nation. See Brown v. CSC Logic, Inc., 82
create a genuine issue of fact that merits a jury           F.3d 651, 655 (5th Cir. 1996).
trial.
                                                                                   B.
                                                                On appeal, Trotter contends that similarly-
                                                            situated white employees were not fired after
   4
     The term “straw boss” is defined as an “assis-         engaging in a fight. This favorable treatment,
tant to a foreman in charge of supervising and ex-          Trotter contends, presents a genuine issue of
pediting the work of a small gang of workmen.”              material fact regarding whether BPB’s cause
WEBSTER’S NEW INT’L DICTIONARY, 2257 (3d ed.                for termination was pretext. Trotter did not
1986). Trotter contends, however, that a “straw             bring up this theory in the district court, so we
boss” was often used historically to refer to a black       cannot consider it. See Nissho-Iwai Am. Corp
foreman who oversaw field slaves. Trotter offers            v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988).
no evidence, other than his subjective belief, to
suggest that Smith meant the term to be derogatory             Even if we were to consider Trotter’s the-
or racist.

                                                        4
ory, however, the evidence he submits still fails
to satisfy his burden of production under
McDonnell Douglas. To establish disparate
treatment, a plaintiff must show that the em-
ployer gave preferential treatment to another
employee under “nearly identical circumstanc-
es.” Okoye, 245 F.3d at 514. Trotter fails to
establish that the white employees who en-
gaged in fights at work were in “nearly identi-
cal circumstances,” because theySSby way of
contrastSSwere fighting other employees.

   Trotter, on the other hand, got into fisti-
cuffs with his boss, a member of management.
Moreover, that was the second fight in which
Trotter had engaged that very day. BPB main-
tains that Trotter was fired for insubordination,
part of which included mouthing off to Smith
and fighting with him. Fighting with other
employees does not constitute insubordination,
and we cannot say that Trotter’s situation was
similar enough to the others’ to cast doubt on
BPB’s grounds for termination.

   AFFIRMED.




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