           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 6, 2009

                                     No. 08-10115                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DELORIS JONES

                                                  Plaintiff-Appellant
v.

WAL-MART STORES INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                    for the Northern District of Texas, Abilene
                                 No. 1:06-CV-159


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Deloris Jones appeals the district court’s order granting
summary judgment in favor of defendant-appellee Wal-Mart Stores, Inc. on her
racial discrimination claim under Title VII of the Civil Rights Act of 1964. For
the reasons set forth below, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                      No. 08-10115

             I. FACTUAL AND PROCEDURAL BACKGROUND
       Jones, an African-American woman, worked as a cashier at the Big Spring,
Texas location of Wal-Mart Stores, Inc. (“Wal-Mart”) from 1995 until her
termination on September 30, 2005. Jones’s exit interview form states that she
was terminated for “WIC violations – excluded amount and limit / pink slips
following DOD.” Pink slips are reprimand notifications given to Wal-Mart
cashiers when their till has a shortage or overage exceeding $5.00. On January
8, 2004, Jones received a “verbal coaching” for receiving three pink slips within
the preceding 90-day period. On June 16, 2004, Jones received a “written
coaching” because she had received another three pink slips since her verbal
coaching. By January 18, 2005, Jones had received yet another three pink slips
and was given a “decision-making day” (i.e., the day of decision or “DOD”
referenced in the exit interview, which is a day of paid leave for employees to
consider their behavior and Wal-Mart’s standards). The other event referenced
in Jones’s exit interview occurred when she allowed a customer to take three
gallons of milk in exchange for a WIC voucher that was valid for only two gallons
of milk. Thereafter, on September 30, 2005, the director of the Big Spring Wal-
Mart decided to terminate Jones’s employment.
       Jones filed this suit in state court and Wal-Mart removed it to the United
States District Court for the Northern District of Texas. Jones alleges disparate
treatment insofar as Wal-Mart transferred similarly situated white and
Hispanic employees to non-cashier positions rather than terminate them.1 The
district court granted summary judgment in favor of Wal-Mart, finding that
Jones had failed to produce any summary judgment evidence showing that she
was similarly situated with the Wal-Mart employees at that location who had
violated the WIC policy or received pink slips but were not terminated.


       1
         Jones also made an age discrimination claim in the district court, but she appealed
only the dismissal of her racial discrimination claim.

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                                II. DISCUSSION
      We review a district court’s grant of summary judgment de novo. Abarca
v. Metro. Transit Auth., 404 F.3d 938, 940 (5th Cir. 2005). Summary judgment
is appropriate when “there is no genuine issue as to any material fact and . . .
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In
a Title VII case based on circumstantial evidence, the plaintiff must first
establish a prima facie case of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). In order to establish a prima facie case of
discrimination in a disparate treatment case, a plaintiff must show that she was:
“(1) a member of a protected class; (2) qualified for the position; (3) subject to an
adverse employment action; and (4) treated differently from others similarly
situated.” Abarca, 404 F.3d at 941 (citations omitted). “Conclusory allegations,
speculation, and unsubstantiated assertions are inadequate to satisfy the
[plaintiff’s] burden.” Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (en banc).
      The district court found that the first three elements of a disparate
treatment claim had been satisfied, but that the fourth had not. Jones recounts
her summary judgment evidence on the fourth element as follows: “Jones
identified five white employees who had cashier discrepancy [sic]. In place of
termination, the white employees were transferred to the floor.            She also
identified two Hispanic employees who had cashier violations, but not fired.”
The district court found that this information was insufficient to establish that
these other employees were similarly situated. For example, Jones did not show
how many pink slips or WIC violations these other employees had in their
records. Likewise, she did not show that these other employees had been
previously disciplined according to Wal-Mart’s detailed “Coaching for
Improvement” policy, a tiered system for addressing employee misbehavior that
culminates in termination.

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      An employee is similarly situated if that employee was under “nearly
identical” circumstances. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245
F.3d 507, 514 (5th Cir. 2001). “The conduct at issue is not nearly identical when
the difference between the plaintiff’s conduct and that of those alleged to be
similarly situated accounts for the difference in treatment received from the
employer.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
Employees with different disciplinary records are not nearly identical. See
Okoye, 245 F.3d at 514-15.
      Jones failed to show that the disciplinary records of the non-terminated
employees were nearly identical to her record. Instead, her argument on appeal
relies solely upon Barnes v. Yellow Freight Systems, Inc., 778 F.2d 1096 (5th Cir.
1985). In Barnes, the plaintiff was a terminated black employee who alleged
that similarly situated white employees had only been demoted. Id. at 1097. We
described the white employee has having “a similar, if not worse, work record”
compared to the plaintiff who had “a good to above-average work history.” Id.
at 1102. Barnes does not support the plaintiff’s argument because she provided
no evidence on the other employees’ disciplinary records. As such, she has failed
to establish the fourth prong of a prima facie case for disparate treatment.
      Jones also argues that Wal-Mart’s stated reason for her termination was
a pretext because the store management did not follow the “Coaching for
Improvement” guidelines. She misinterprets Wal-Mart’s policy to “negate[]
discipline if the shortage is less than $25.00.” The policy plainly states that no
coaching is necessary if the employee has two slips and the shortage is less than
$25.00.   However, verbal coaching becomes mandatory after the employee
receives three slips regardless of the amount of the shortage. She admits
receiving three slips and, therefore, the aggregate amount of her shortage is
irrelevant. Accordingly, Jones failed to show that her treatment deviated from
Wal-Mart’s protocol for reprimanding employees prior to termination and did not

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create a genuine material fact of pretext as to Wal-Mart’s legitimate, non-
discriminatory reason for discharge.
                            III. CONCLUSION
     For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment.




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