     Case: 11-20120     Document: 00511808436         Page: 1     Date Filed: 04/02/2012




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

                                                                            FILED
                                                                            April 2, 2012
                                     No. 11-20120
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ALEX NGUYEN,

                                                  Plaintiff - Appellant

v.

SYSCO FOOD SERVICES OF HOUSTON, INCORPORATED,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3011


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Proceeding pro se, as he did in district court, Alex Nguyen challenges an
adverse summary judgment regarding the employment from which he was
discharged.
        A summary judgment is reviewed de novo, using the same standard
applied by the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752,
754 (5th Cir. 2011). “Summary judgment is proper only where there is no
genuine dispute as to any material fact and the movant is entitled to judgment

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-20120      Document: 00511808436    Page: 2   Date Filed: 04/02/2012

                                  No. 11-20120

as a matter of law.” Id. (internal quotation marks omitted). “A dispute is
genuine if the summary judgment evidence is such that a reasonable jury could
return a verdict for the non-movant.” Id. (internal quotation marks omitted).
The party moving for summary judgment must establish there is no genuine
issue for trial but is not required to disprove the nonmovant’s case. E.g., Duffie
v. United States, 600 F.3d 362, 371 (5th Cir. 2010). If the moving party meets
this burden, the burden shifts to the nonmovant to provide specific evidence to
support his claims; the nonmovant may not simply rest on the allegations in the
complaint or on “conclusory allegations”, “unsubstantiated assertions”, or a mere
“scintilla of evidence”. Id.
      Regarding Nguyen’s discrimination claim, where an employee claims an
employer discriminated on the basis of race, our court employs the
burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 804 (1973). If plaintiff establishes a prima facie case of discrimination, the
burden shifts to defendant to show a legitimate, nondiscriminatory reason for its
actions; if defendant is successful, the burden returns to plaintiff to establish
defendant’s stated reason was pretextual. Id.; Jackson v. Watkins, 619 F.3d 463,
466 (5th Cir. 2010).
      In his pro-se opposition to summary judgment in district court, Nguyen
failed to make a prima facie showing of discrimination because he did not
identify any similarly-situated person of another racial or ethnic group who was
treated differently than he. McDonnell Douglas, 411 U.S. at 802. Moreover,
even had he done so, Sysco produced unrebutted summary-judgment evidence
showing Nguyen was discharged for violating Sysco’s attendance policy–a
legitimate, nondiscriminatory reason for terminating his employment–and
Nguyen failed to present summary-judgment evidence that this reason was
pretextual. Jackson, 619 F.3d at 466-67.
      Nguyen vaguely contends Sysco violated the Family and Medical Leave
Act (FMLA). The district court correctly found no summary-judgment evidence

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                                 No. 11-20120

of a FMLA violation because Sysco was unaware that Nguyen intended to seek
FMLA leave. Further, Nguyen cannot show he was entitled to such leave
because his injury admittedly did not prevent his performing his assigned light
duties. See Willis v. Coca Cola Enters., Inc., 445 F.3d 413, 418-19 (5th Cir.
2006).
      The district court concluded that Nguyen had failed to offer any evidence
to support his other claims for retaliation, violations of the Age Discrimination
in Employment Act, or violations of the Americans with Disabilities Act.
Nguyen has abandoned any appeal from those conclusions by failing to brief
those claims. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      AFFIRMED.




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