                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 18, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-30407
                         Summary Calendar



RONALD MATTHEWS

           Plaintiff - Appellant

v.

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA;
LOUISIANA/MISSISSIPPI CARPENTERS REGIONAL COUNCIL, CARPENTER’S
LOCAL 1098


           Defendants - Appellees

–––––––––––––––––––––––––––––––––

RONALD MATTHEWS
          Plaintiff - Appellant

v.

LOUISIANA/MISSISSIPPI CARPENTERS REGIONAL COUNCIL

           Defendant - Appellee



            Appeal from the United States District Court
         for the Middle District of Louisiana, Baton Rouge
                         USDC No. 3:03-CV-49


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*


     *
        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that this opinion should not be published and is not precedent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.
     Plaintiff-appellant Ronald Matthews appeals the district

court’s judgment, arguing that the district court erred when it

held that he was required to file an internal grievance before

utilizing the court system.   We AFFIRM.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Matthews, an African-American and long-time member of

Carpenter’s Local 1098, worked as a Business Representative-

Organizer with the Louisiana/Mississippi Carpenters Regional

Council (“the Regional Council”).    The Regional Council is a

regional labor organization, comprised of representatives of

local Carpenters’ unions throughout Mississippi and Louisiana.

Executive Board members from the local unions make up the

Regional Council’s governing body.    The Executive Secretary-

Treasurer oversees the Regional Council’s day-to-day functions.

     Kevin T. Curley, a white male and then Executive Secretary-

Treasurer, hired Matthews and assigned him office space at his

local union, Carpenters Local Union 1098, in Baton Rouge.

Matthews’s primary job responsibility was organizing

unrepresented workers and contractors and persuading them of the

benefits of unionization.   Matthews often visited workers at job

sites and at their homes to discuss joining the union.    At times

Matthews also assisted in referring union members to jobs.

     Granville Stewart, Director of Organizing, served as

Matthews’s direct supervisor.   Because Stewart did not have his


                                 2
office in Baton Rouge, he used other Regional Council employees

in the Local 1098 office as lead organizers to direct the daily

tasks of the Regional Council organizers in that office.    Joseph

Ardoin Jr. served as the lead organizer when Matthews began

working for the Regional Council in December 2000.    Jason Engels

replaced Ardoin as lead organizer in September 2001 and served in

that position throughout the remainder of Matthews’s employment.

     On January 28, 2002, Stewart recommended that Matthews be

discharged from employment.    Wiley LeBert, Acting Executive

Secretary-Treasurer, sought and received permission from the

Regional Council’s Executive Board to terminate Matthews’s

employment.    On April 24, 2002, LeBert wrote a letter to Matthews

notifying him of the discharge.    Stewart delivered the letter to

Matthews and told Matthews that he was being discharged for

ineffective performance.

     Matthews filed a charge with the EEOC against the Regional

Council.   After conducting an investigation, the EEOC dismissed

Matthews’s charge on the basis that it was unable to find a

violation.    Matthews then filed this lawsuit against United

Brotherhood of Carpenters and Joiners of America;

Louisiana/Mississippi Carpenters Regional Council, and

Carpenter’s Local 1098, alleging racial discrimination in

violation of Title VII and 42 U.S.C. § 1981, intentional

infliction of emotional distress, and abuse of rights.    The

defendants-appellees filed motions for summary judgment, which

                                  3
the district court granted.   Matthews now appeals the district

court’s judgment.

                       II. SUMMARY JUDGMENT

     We review a district court’s grant of summary judgment de

novo, using the same standards applied by the district court.

Riverwood Int’l Corp. v. Employers Ins. of Wausau, 420 F.3d 378,

382 (5th Cir. 2005).   Summary judgment is proper when, viewing

the evidence in the light most favorable to the nonmovant, “there

is no genuine issue of any material fact” and the moving party is

“entitled to judgment as a matter of law.”      Brooks, Tarlton,

Gilbert, Douglas & Kressler v. United States, 832 F.2d 1358, 1364

(5th Cir. 1987); FED. R. CIV. P. 56(c).

     Once the moving party establishes that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial.      Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).     The nonmoving party

cannot rely only upon allegations, denials in a pleading, or

unsubstantiated assertions that a fact issue exists, but must

“set forth specific facts showing the existence of a ‘genuine’

issue concerning every essential component of its case.”      Morris

v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.

1998).   The district court may not grant a motion for summary

judgment simply because it is unopposed.      Hetzel v. Bethlehem

Steel Corp., 50 F.3d 360, 362 n.3 (5th Cir. 1995).



                                 4
     The district court granted summary judgment on the basis

that Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998),

required Matthews to take advantage of the internal grievance

procedures set in place by his employer before taking action in

court.     The district court improperly applied Faragher.   The

Supreme Court in Faragher held that in sexual harassment cases

for a hostile environment, when no tangible adverse employment

action resulted, employers are exempted from liability if the

employee unreasonably fails to take advantage of a policy set in

place by the employer to avoid harm.   524 U.S. at 807.   The

affirmative defense in Faragher does not apply to Matthews’s case

for two reasons: (1) this case is a racial discrimination case

for wrongful termination, not a sexual, or other, harassment

case;1 and (2) Matthews suffered a tangible employment action–-

termination.    See id.

     However, we may affirm summary judgment on alternative

grounds than those relied upon by the district court when the

record provides “an adequate and independent basis for that

result.”   Guthrie v. Tifco Indus., 941 F.2d 374, 379 (5th Cir.

1979).   Such a basis exists here.

     The plaintiff in an employment discrimination case may

present either direct or circumstantial evidence of intentional



     1
      Matthews conceded before the district court that he could
not establish a claim for hostile work environment.

                                 5
discrimination.2   See Machinchick v. PB Power, Inc., 398 F.3d

345, 350 (5th Cir. 2005).   When the plaintiff presents only

circumstantial evidence that his discharge was motivated by race

discrimination, the court applies the McDonnell Douglas burden-

shifting analysis.   See McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).   Under that analysis, the plaintiff must first

present evidence establishing the existence of a prima facie case

of gender discrimination.   See Machinchick, 398 F.3d at 350.

After the plaintiff establishes a prima facie case, a presumption

of discrimination arises and the burden of production shifts to

the defendant to offer evidence of a legitimate, non-

discriminatory reason for the employment action at issue.      Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).

      If the defendant meets this burden of production, “the

presumption of discrimination created by the plaintiff’s prima

facie case disappears and the plaintiff must meet [his] ultimate

burden of persuasion on the issue of intentional discrimination.”

Id.   A plaintiff may meet this burden by producing evidence

either that the defendant’s proffered nondiscriminatory reasons

are false or, if true, that his protected characteristic was,

nevertheless, a motivating factor for the adverse employment



      2
       The test to survive summary judgment on racial
discrimination claims under § 1981 is the same as the test for
racial discrimination claims under Title VII. Patel v. Midland
Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002).

                                 6
action.    Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

148 (2000) (“[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.”); see also Sandstad

v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (holding that

“[e]vidence demonstrating the falsity of the defendant’s

explanation taken together with the prima facie case, is likely

to support an inference of discrimination even without further

evidence of [the employer’s] true motive.”).   If a plaintiff

demonstrates that a protected characteristic was a motivating

factor in the employment decision, the defendant must then prove

that the same employment decision would have been made even in

the absence of the discriminatory motive.    See Rachid v. Jack-in-

the-Box, Inc., 376 F.3d 305, 309-10 (5th Cir. 2004).

     The Regional Council conceded that Matthews establishes a

prima facie case of racial discrimination.   Further, Matthews

acknowledged before the district court that the Regional Council

provided a legitimate, nondiscriminatory basis for his

discharge–-that he poorly performed in the workplace.    Ample

evidence of poor performance has been presented.   The Regional

Council points to a formal written job evaluation by Stewart

which rated Matthews poorly in seven of eleven categories.    The

highest score Matthews received in any category was a three out

of five.   Engels, the lead organizer, also documented many other

                                 7
problems with Matthews’s performance including that Matthews

failed to show up for specific assignments, conducted excessive

personal phone calls at work, slept during meetings, was

routinely tardy, lacked enthusiasm, misplaced his attention on

the work of others, and failed to obtain volunteers to work the

union’s phone bank.   Accordingly, the only remaining question is

whether Matthews presented evidence that the reason given for his

discharge was a pretext for discriminating against him or that

his race was a motivating factor in his termination.

     Matthews unsuccessfully attempts to rebut the Regional

Council’s non-discriminatory reasons for his discharge by arguing

that he did good work.   But Matthews cites to no evidence that he

performed well, other than allegations in his own complaint and

Ardoin’s comment that Matthews did a good job recruiting black

union members.   Indeed, when Stewart asked Matthews to review the

evaluation, Matthews did not contest the lowest ratings he

received in numerous categories, including public speaking,

leadership abilities, ability to develop campaign strategies, and

determination.   Matthews presented no evidence to rebut either

Engels’s reports concerning Matthews’s problems or Stewart’s

evaluation; accordingly, Matthews failed to provide any evidence

that the Regional Council’s nondiscriminatory reason was a

pretext.

     Matthews also fails to make the case that discrimination was

a motivating factor in the Regional Council’s decision to fire

                                 8
him.       Matthews points to comments made by Ardoin3 as evidence

that racial discrimination played a factor in his termination,

and he contends that under Palasota v. Haggar Clothing Co., 342

F.3d 569, 578 (5th Cir. 2003), these remarks constitute proof of

an employer’s illegal racial animus.        This court held in Palasota

that discriminatory remarks may be taken into account “even where

the comment is not in the direct context of the termination and

even if uttered by one other than the formal decision maker,

provided that the individual is in a position to influence the

decision.”       342 F.3d at 578.   But the instant case can be

distinguished from Palasota, where members of upper management

made the discriminatory comments, because there is no evidence

that Ardoin was in a position to influence the decision makers.

At the time the Executive Board decided to terminate Matthews,

Ardoin no longer had a management role and had not had one for

seven months.       Matthews points to no evidence that Ardoin

influenced either Stewart’s recommendation to discharge Matthews

or the Regional Council’s ultimate decision to discharge


       3
      The alleged remarks made by Ardoin are:
          1. On December 13, 2000, Matthews asked Ardoin if
Ardoin ever thought he would see a day a black man was working at
Local 1098. Ardoin replied no, he never thought he would see the
day.
          2. In December 2001, Ardoin told Matthews that if
Matthews kept organizing black members, the black members would
outnumber the white members.
          3. In February 2002, Matthews overheard Ardoin tell
someone on the telephone that Matthews had a “nigger” using
Ardoin’s telephone.

                                      9
Matthews.4   Accordingly, Matthews has presented no evidence that

race was a motivating factor in the decision to terminate him.

Because Matthews failed to present evidence that the Regional

Council’s non-discriminatory reason for terminating him was

pretext or that race was a motivating factor in the discharge

decision, Matthews cannot withstand summary judgment.

                          III. CONCLUSION

     For the foregoing reasons, the district court’s judgment is

AFFIRMED.




     4
       Discriminatory intent may be established by evidence that
employees outside Matthews’s protected class were treated more
favorably than him in similar situations. See Keelan v. Majesco
Software, Inc., 407 F.3d 332 (5th Cir. 2005). Matthews complains
that secretaries failed to give him phone messages, failed to
receive a set of keys, and that mail addressed to him was opened
by support staff, but there is no evidence that these incidents
were related to the decision to fire him. Similarly situated
white employees were affected in most cases.

                                10
