                                                          United States Court of Appeals
                                                                   Fifth Circuit
                IN THE UNITED STATES COURT OF APPEALS
                                                                F I L E D
                        FOR THE FIFTH CIRCUIT
                        _____________________                   November 8, 2006
                             No. 05-21088                   Charles R. Fulbruge III
                           Summary Calendar                         Clerk
                        _____________________

DARRELL B. TAYLOR

                                   Plaintiff-Appellant
     v.
PEERLESS INDUSTRIES, INC.
                                   Defendant-Appellee

                       ----------------------
                          Appeal from the
                    United States District Court
                 for the Southern District of Texas
                           4:04-CV-2964
                       ----------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM*:

     This appeal implicates a terminated employment relationship

between   an   employee,     Plaintiff-Appellant     Darrell    B.     Taylor

(“Taylor”),    and    his    employer,    Defendant-Appellee         Peerless

Industries, Inc. (“Peerless”).       From October 18, 2001 to May 2,

2003, Taylor worked as a district sales representative in the

southern district of Peerless’s professional sales department’s

area of   coverage.     On   May   2nd,   however,   Peerless   terminated


     *
      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this opinion should not be published and is not precedent except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
Taylor’s employment for his alleged ineffectiveness in the field.

     Taylor,    a   black   male,    sued    Peerless,    charging   that   it

discriminated against him on the basis of his race in violation

of both United States Code, title 42, section 1981 and title VII

of the Civil Rights Act of 1964.            Slightly over a year into the

lawsuit,    Peerless    filed    a    motion    for      summary   judgement,

contending that it was entitled to judgment as a matter of law.

It argued that Taylor could not establish a prima facie case of

racial discrimination, and that even if he could, Peerless would

still be entitled to judgment as a matter of law based on its

proffered    legitimate,    non-discriminatory        reason   for   Taylor’s

termination —— his professional ineffectiveness.

     After a hearing on the motion, the district court granted

summary judgment to Peerless, concluding that Taylor could not

establish    that   Peerless’s   articulated,     legitimate       reason   for

termination was pretextual under the burden-shifting oscillation

established in McDonnell Douglas Corp. v. Green.1              Taylor timely

filed a notice of appeal.

     We review a grant of summary judgment de novo, applying the

same standard employed by the district court.2              Summary judgment


     1
         411 U.S. 792 (1973).
     2
      Abarca v. Metro. Transit Auth., 404 F.3d 938, 940 (5th
Cir. 2005).

                                      2
is appropriate when there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.3

     In reaching its decision, the district court applied the

McDonnell    Douglas        methodology       to    Taylor’s    claims.          This

constituted an error of law.          Since the Supreme Court handed down

Desert    Palace,    Inc.    v.   Costa,4     we   have   applied     a   “modified”

McDonnell Douglas process in title VII cases.5

     Like    the     original      McDonnell        Douglas    methodology,       the

modified procedure allows the use of circumstantial evidence of

discrimination when there is no direct evidence: The plaintiff

must first establish a prima facie case of discrimination; the

defendant then must articulate a legitimate, non-discriminatory

reason for its decision to terminate the plaintiff; and, if the

defendant    meets    its     burden,     the      plaintiff   must       then   offer

sufficient evidence that the defendant’s reason is not true, but

is instead a pretext for discrimination.                  The modified McDonnell



     3
      Dallas Fire Fighters Ass’n v. City of Dallas, 150 F.3d
438, 440 (5th Cir. 1998).
     4
         539 U.S. 90 (2003).
     5
      Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th
Cir. 2005); see also Rachid v. Jack in the Box, Inc., 376 F.3d
305, 310-12 (5th Cir. 2004). Additionally, title VII and § 1981
claims require the same proof to establish liability when used as
parallel causes of action. Bunch v. Bullard, 795 F.2d 384, 387
n.1 (5th Cir. 1986). Thus, the modified McDonnell Douglas test
is equally applicable to Taylor’s § 1981 claim.

                                          3
Douglas minuet comes into play in the so-called mixed motive

cases, those in which the defendant’s proffered reason, even if

true, is but one of two or more reasons for its employment

decision,         another    “motivating       factor”   being    the    plaintiff’s

protected classification.6             Under the modified McDonnell Douglas

process, the defendant-employer must demonstrate that it would

have       made   the   same   adverse   employment      decision       even    in   the

absence of the employee’s showing of a discriminatory animus.7

If the employer cannot bear this burden, the plaintiff-employee

prevails.8

       By applying the original McDonnell Douglas test, rather than

the    modified      version,    the   district     court   failed      to     consider

whether race was a motivating factor in Peerless’s decision, even

if it were not the sole factor.                Based on the applicable law and

our extensive review of the parties’ briefs and the record on

appeal, we conclude that the district court failed properly to

analyze Taylor’s claim as a mixed motive case under the required

modified McDonnell Douglas process.                 Accordingly, we vacate the

district         court’s    summary   judgment    and    remand   the    matter      for

further proceedings consistent with Costa, our precedent, and

       6
           Keelan, 407 F.3d at 341.
       7
           Id.
       8
           Id.

                                           4
this opinion.

     Our decision today should not be construed as precluding the

district court’s reaching the same result under the modified

McDonnell Douglas procedure that it reached under the original

McDonnell Douglas methodology.   We do not intend to send such a

signal.

     VACATED AND REMANDED.




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