                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS            March 2, 2004

                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk


                             No. 03-20433

                           Summary Calendar



     MEKURIA W MEMBERU

                                 Plaintiff - Appellant

     v.

     ALLRIGHT PARKING SYSTEMS INC

                                 Defendant - Appellee


          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. H-01-CV-2532


Before KING, Chief Judge, and DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Mekuria W. Memberu appeals the district

court’s grant of summary judgment against him on his employment-

discrimination claims.    For the following reasons, we affirm.

                     I. Facts and Proceedings

     Defendant-Appellee Allright Parking Systems, Inc. hired


     *
          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that this opinion should not be published and is not precedent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
Memberu to work as a “meter checker” in 1992.   In May 1999,

Allright promoted Memberu to assistant manager of its downtown

Houston surface parking area.2   Several months later, the night

manager of that parking area retired, and in December 1999,

Memberu began serving as night manager (a position superior to

that of assistant manager).   But Allright--dissatisfied with

Memberu’s performance as night manager--subsequently promoted a

different employee to night manager in October 2000, and it

reassigned Memberu to the position of assistant night manager.

Then, in January 2001, Allright fired Memberu, after he failed to

show up for work without warning on New Year’s Eve 2000.3

     In July 2001, Memberu sued Allright, asserting claims under

42 U.S.C. § 1981 and seeking, inter alia, damages and

reinstatement.4   His complaint alleges that Allright

discriminated against him on the basis of his race5 by paying him


     2
          Both parties and the district court refer to the
positions of assistant manager, night manager, and assistant
night manager as supervisory positions. Accordingly, when we
refer to a supervisor or a supervisory position, we have in mind
any of these three managerial roles.
     3
          The parties dispute whether Memberu was in fact
scheduled to work that night. This conflict is irrelevant to our
resolution of this appeal because Memberu has not established a
prima facie case on either of the claims regarding his
termination that he advances on appeal. See infra Part III.D.
Consequently, we do not need to discuss any of Allright’s
asserted nondiscriminatory explanations for Memberu’s dismissal.
     4
          In addition, Memberu asserted a cause of action for
slander under Texas law, but he later withdrew that claim.
     5
          Memberu, an African immigrant, is black.

                                 2
less than and failing to provide him with all of the benefits

received by similarly situated white employees, demoting him from

night manager to assistant night manager, and terminating his

employment.   Also, Memberu asserts that his termination was

retaliatory discrimination prohibited by § 1981.

     Allright moved for complete summary judgment in August 2002.

Memberu opposed the motion with circumstantial evidence that he

contends shows that Allright intentionally discriminated against

him in violation of § 1981.    Accordingly, the district court

correctly utilized the burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in

adjudicating Allright’s motion.        Mason v. United Air Lines, Inc.,

274 F.3d 314, 318 (5th Cir. 2001) (“We apply the McDonnell

Douglas burden-shifting framework in Title VII and 42 U.S.C.

§ 1981 cases.”).    Under the Court’s decision in McDonnell Douglas

and its progeny, a plaintiff alleging employment discrimination

must first establish by a preponderance of the evidence a prima

facie case of racial discrimination.        See Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); see also

McDonnell Douglas, 411 U.S. at 802.       Then, the burden shifts to

the employer to advance a legitimate, nondiscriminatory reason

for its behavior.    See Burdine, 450 U.S. at 254-56; McDonnell

Douglas, 411 U.S. at 802.     Finally, if the employer meets this

burden of production, “the presumption raised by the prima facie

case is rebutted” and “drops from the case;” the employee is then

                                   3
required to “demonstrate that the proffered reason was not the

true reason for” the adverse employment action.      Burdine, 450

U.S. at 255-56 & n.10; see also McDonnell Douglas, 411 U.S. at

804-05.   To do so, the plaintiff may prove by a preponderance of

the evidence either that the employer’s proffered explanation is

incredible or that a discriminatory reason more likely motivated

the employer.     Burdine, 450 U.S. at 256.   “Although intermediate

evidentiary burdens shift back and forth under this framework,

‘[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.’”      Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine,

450 U.S. at 253).    To survive summary judgment, however, the

employee need only present sufficient evidence for a reasonable

factfinder to infer discrimination.     See Crawford v. Formosa

Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000).

     Applying the principles articulated above, the district

court granted Allright’s summary-judgment motion in part and

denied it in part in December 2001.    Addressing Memberu’s

discriminatory-discharge and discriminatory-demotion theories,

the court held that Memberu had failed to respond to Allright’s

asserted nondiscriminatory justifications by presenting evidence

that would raise a genuine issue of fact regarding intentional

discrimination.    Moreover, the district court concluded that

Memberu had not established a prima facie case regarding his

                                   4
allegation that his dismissal evidences disparate treatment.

Next, the court ruled that Memberu had failed to substantiate a

prima facie case on his claim of discriminatory denial of

benefits.   The district court also rejected Memberu’s retaliation

claim, concluding both that he had not put forth enough evidence

for a prima facie case and, alternatively, that he had not

discredited Allright’s proffered explanations for his

termination.    But the district court denied summary judgment on

Memberu’s wage-discrimination claim, since Allright had failed to

address in its summary-judgment materials Memberu’s specific

allegations regarding that claim--i.e., Allright had not

articulated a nondiscriminatory explanation for the wage

differential.

     Allright then filed a supplemental motion for summary

judgment, responding to Memberu’s evidence that he was paid less

than a similarly situated white employee.    In April 2003, the

district court granted summary judgment for Allright on Memberu’s

wage-discrimination claim.    According to the district court,

Memberu had failed to demonstrate that Allright’s proffered

justification for the pay differential was either false or a

pretext for discrimination.    Having disposed of each claim in

this litigation, the district court entered a final judgment in

favor of Allright.

                       II. Standard of Review



                                  5
     “In employment discrimination cases, the court reviews

summary judgments de novo, applying the same standard as the

district court.”     See Sherrod v. Am. Airlines, Inc., 132 F.3d

1112, 1119 (5th Cir. 1998).    And the district court applies the

following standard: “summary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED.

R. CIV. P. 56(c)).    Where, as here, the burden of production at

trial ultimately rests on the non-movant, “the movant must merely

demonstrate an absence of evidentiary support in the record for

the non-movant’s case.”     Byers v. Dallas Morning News, Inc., 209

F.3d 419, 424 (5th Cir. 2000).     By contrast, “the nonmoving party

must come forward with ‘specific facts showing that there is a

genuine issue for trial,’” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (quoting FED. R. CIV. P.

56(e)), and “there is no issue for trial unless there is

sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party,” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).    When the district court reviews

the support for the non-movant’s case, the “evidence of the

non-movant is to be believed, and all justifiable inferences are

to be drawn in [its] favor.”     Id. at 255.

                                   6
                            III. Discussion

     Memberu appeals, asserting that the district court

improperly granted summary judgment against him on each of his

§ 1981 claims.   We address his contentions below, and we conclude

that the district court correctly determined that Memberu had not

presented sufficient evidence to permit a reasonable jury to find

for him on any of his allegations of discrimination.

A.   Wage Discrimination

     On appeal, Memberu contends that the district court erred in

granting summary judgment against him on his claim that Allright

violated § 1981 by paying him less than it paid a white assistant

manager, Elster Matthews.    In response, Allright asserts that it

compensated Matthews at a higher rate because of his greater

qualifications and experience.6    Specifically, Allright notes

that, at the time of Memberu’s promotion to assistant manager,

the company’s practice was to pay new supervisors at an entry-

level rate.   In contrast to Memberu, Matthews was first promoted

to a supervisory position in 1987; thus, Matthews had worked as a

supervisor for about twelve years before Memberu was first

promoted to assistant manager in 1999.    During those twelve

years, Allright argues, Matthews earned various raises and merit



     6
          Allright also contends that Memberu has not established
a prima facie case regarding this claim. Because we affirm on a
different basis, we need not address the company’s arguments on
this point.

                                   7
increases, which resulted in his higher wage.   Moreover, the

company contends that the experience Matthews gained from his

long tenure as a supervisor made him more valuable to the

company.   See Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1048-49

(5th Cir. 1996) (stating that experience is a legitimate,

nondiscriminatory reason for a wage differential).   Allright has

presented evidence that tenure in a supervisory capacity

correlated to higher wages.   Accordingly, the company has met its

burden of production regarding its nondiscriminatory explanation

for the wage differential.

     Contending that Allright’s proffered explanation is false or

a pretext for discrimination, Memberu argues first that Matthews

was less qualified because Matthews is less educated.   Second,

Memberu asserts that, since he--not Matthews--assumed the

position of night manager in December 1999 when the previous

night manager retired, Matthews could not have been more

qualified.   Answering these contentions, Allright notes that it

did not rely on any educational differences between Matthews and

Memberu as a basis for the wage differential; thus, it argues

that this is irrelevant.   Additionally, Allright explains that

Matthews previously had worked as night manager for several years

before asking to resume his former position of assistant manager,

a request which Allright accommodated.   Allright maintains that

this is the reason that Memberu, and not Matthews, was asked to

work as night manager in 1999.

                                 8
     Memberu has failed to raise a genuine issue of fact

regarding whether Allright’s nondiscriminatory explanation for

the pay differential is either false or a pretext for

discrimination.   Memberu’s appellate brief focuses on the fact

that the two employees were paid different wages.   But he never

rebuts Allright’s assertion that length of service as a

supervisor explains the differential, nor does he offer any other

evidence that a discriminatory purpose drove the wage gap between

himself and Matthews.7   As the district court held, these

failures are fatal to Memberu’s wage-discrimination claim.     See

Reeves, 530 U.S. at 148 (holding that “a plaintiff’s prima facie

case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier

of fact to conclude that the employer unlawfully discriminated”

(emphasis added)).

B.   Discriminatory Denial of Benefits

     Memberu contends on appeal that he never received a gas

allowance to which he was entitled as a supervisor.    To make out

a prima facie case on this claim, Memberu must show, inter alia,

that a similarly situated employee outside of his protected class

was treated more favorably.   Okoye v. Univ. of Tex. Houston

Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir. 2001).    In granting

     7
          Instead, Memberu’s own summary-judgment materials
indicate that two black supervisors, both of whom had served in
supervisory positions longer than both Matthews and Memberu, were
paid more than both Matthews and Memberu.

                                 9
summary judgment against him, the district court found that

Memberu had failed to present any evidence on this point, and

Memberu’s appellate brief contains no mention of any similarly

situated employees.   Accordingly, we agree with the district

court that he has not established this element of his prima facie

case and, therefore, that summary judgment is appropriate on this

claim.   Pratt v. City of Houston, 247 F.3d 601, 606 (5th Cir.

2001) (“To survive a motion for summary judgment, a [§ 1981]

plaintiff must first establish a prima facie case of

discrimination by a preponderance of the evidence.” (footnote

omitted)).

C.   Discriminatory Demotion

     Memberu contends that Allright violated § 1981 by demoting

him from night manager to assistant night manager in 2000 and

replacing him with a white employee, Zaki Hattab.   Allright

disagrees that it demoted Memberu, asserting instead that he only

served as night manager on a provisional basis and that his claim

is actually one for discriminatory failure to promote.   The

district court noted this dispute, but it concluded that it did

not have to resolve the conflict because, even if Memberu could

establish a prima facie case under either theory, he had not

rebutted adequately Allright’s nondiscriminatory justifications

for placing Hattab in the night manager position.

     Before the district court and on appeal, Allright maintains



                                10
that Memberu performed unsatisfactorily as night manager.

Specifically, the company asserts (1) that revenues from parking

lots controlled by Memberu were insufficient; (2) that, although

he was responsible for the entire downtown surface parking area,

he spent most of his time on one lot; and (3) that Memberu often

delegated certain “non-delegable” duties.   Because of these

shortcomings, Allright decided to replace Memberu, and it chose

Hattab based on his experience successfully managing a valet

parking area.   Allright submitted a declaration from its then-

general manager supporting the above nondiscriminatory

explanations for its actions.   Consequently, if there were a

trial in this matter, Memberu would have to prove intentional

discrimination without the aid of the McDonnell Douglas

presumption.    Burdine, 450 U.S. at 255-56 & n.10.

     Attempting to raise a genuine issue of fact regarding

intentional discrimination, Memberu directs us to his own

affidavit, which disputes the assertion that he performed poorly

as night manager.   The affidavit explains that he had no control

over budget projections, but it does not contest the allegation

that revenue was deficient during his tenure.   Further, the

affidavit claims that Memberu did visit the various lots and

argues that, if he had not been doing his job, he would have been

“written up.”   Finally, the affidavit admits that sometimes

Matthews and not Memberu checked other lots, but it insists that

Memberu did not know that this practice was unacceptable.    While

                                 11
a jury could infer from Memberu’s statements that he was unaware

that his performance was below expectations, this does not

indicate that Allright’s employee lied in stating that the

company was dissatisfied.   Moreover, even if a jury felt that

Memberu had performed adequately, we have said that “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.”   Little v. Republic Refining Co., 924

F.2d 93, 97 (5th Cir. 1991).

     Memberu also asserts that he “was eminently more qualified

for the [night] Manager’s position than was Hattab.”   Appellant’s

Br. at 13.   But the only evidence that Memberu refers to in

support of this claim is his own affidavit, which contains only a

plain statement that he was more qualified and fails to

contradict the statements of Allright’s then-general manager

regarding Hattab’s qualifications.   Memberu’s brief fails to

direct us to any other evidence in the record that would support

an inference of intentional discrimination.   Nevertheless,

Memberu contends that summary judgment is inappropriate because a

jury could choose to disbelieve the testimony of Allright’s

employee.

     Viewing the record in the light most favorable to Memberu,

                                12
we cannot conclude that Memberu has provided sufficient evidence

to permit a jury to find that Allright’s nondiscriminatory

explanation is either false or a pretext for discrimination.     See

Reeves, 530 U.S. at 148; Burdine, 450 U.S. at 256; see also

Anderson, 477 U.S. at 256-57.   While it is true that a jury could

disbelieve Allright’s witnesses, this does not relieve Memberu of

his burden of proffering evidence from which a reasonable jury

could infer intentional discrimination.   See Reeves, 530 U.S. at

143; 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); see also Matsushita, 475 U.S.

at 587.   Since we agree with the district court that he has not

met this burden, summary judgment is proper here.

D.   Discriminatory and Retaliatory Discharge

     On appeal, Memberu maintains that Allright violated § 1981

by terminating him.   Memberu first asserts that he should not

have been fired for missing work without calling on New Year’s

Eve 2000, since (he claims) Matthews missed work without calling

on Thanksgiving Day 2000 and was not fired.   According to

Memberu, this disparate treatment renders his discharge an act of

intentional discrimination.

     But Memberu has not presented any evidence, besides an



                                13
allegation in his own affidavit, that Matthews was scheduled to

work on Thanksgiving.   Moreover, that assertion from Memberu’s

affidavit conflicts with his deposition testimony, in which he

stated that Thanksgiving was Matthews’s day off.    In addition,

Allright submitted the declaration of its assistant operations

manager, Glenn Guest, who was responsible for creating the work

schedules for employees at the downtown surface parking area in

November 2000; Guest confirmed that Matthews was not scheduled to

work on Thanksgiving.   We therefore agree with the district court

that Memberu has failed to establish that Matthews (a similarly

situated white employee) was treated more favorably than he.

Because this is an element of Memberu’s prima facie case on his

disparate-discipline claim, Okoye, 245 F.3d at 513, summary

judgment is appropriate.     Pratt, 247 F.3d 601, 606.

     Second, Memberu contends that Allright terminated him in

retaliation for his having complained previously of racial

discrimination.   To establish a prima facie case on this claim,

Memberu must show (1) that he engaged in a protected activity;

(2) that he suffered an adverse employment action; and (3) that a

causal connection exists between the protected activity and the

adverse employment action.     See Byers, 209 F.3d at 427.    The

district court expressed some doubt concerning whether Memberu

had shown that he had engaged in a protected activity.       But the

court assumed for the sake of argument that he had, and it held

that his claim nevertheless failed because he had not meet his

                                  14
burden of establishing any causal connection between a protected

activity and his dismissal.     See Sherrod, 132 F.3d at 1122 (“In

order to establish the causal link between the protected conduct

and the illegal employment action as required by the prima facie

case, the evidence must show that the employer’s decision to

terminate was based in part on knowledge of the employee’s

protected activity.”).    On appeal, Memberu simply fails to

address the district court’s conclusion on this issue.    In

particular, he has not advanced any evidence that the Allright

employees who decided to terminate him were aware of his

complaints of discrimination.    Cf. id. 1122-23 (concluding that

the causal aspect of the prima facie case is met when the

decision-maker signs a termination letter containing references

to the plaintiff’s protected activities).    Consequently, we

affirm the district court’s grant of summary judgment against

him.

                           IV. Conclusion

       Accordingly, the district court’s judgment is AFFIRMED.




                                  15
