     Case: 10-10107     Document: 00511218012          Page: 1    Date Filed: 08/27/2010




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

                                                  FILED
                                                                           August 27, 2010
                                     No. 10-10107
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TERRY R. JAMES, also known as Terry Ray James, also known as Terry
James,

                                                   Plaintiff - Appellant
v.

FIESTA FOOD MART, INCORPORATED,

                                                   Defendant - Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                            USDC No. 3:09-CV-00711-P


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff-appellant Terry R. James (“James”) appeals the district court’s
grant of summary judgment in favor of defendant-appellee, Fiesta Food Mart,
Inc., (“Fiesta”) on James’ Title VII claims of employment discrimination. For the
following reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                        No. 10-10107

                                               I.
      Fiesta, a regional grocery chain, hired James, an African-American male,
as a nighttime shelf stocker at one of Fiesta’s stores in Dallas, Texas, in July
2008. During James’ tenure at Fiesta, the company maintained written rules
and policies that described, among other things, the perks available to Fiesta’s
stockers and the company’s standards for workplace harassment.                        Fiesta
permitted stockers to consume certain items from the store shelves for free;
other items were available for consumption at cost.                    Fiesta provided its
employees, including James, with a list of the available free items, and Fiesta
warned that disciplinary action could result if an employee consumed items not
on the free list without paying for them.1             Fiesta also maintained an anti-
harassment policy which directed employees who felt victimized by harassment
to contact certain personnel to file grievances. Fiesta defined harassment as
including verbal racial slurs but made clear that employees had to report
harassment complaints to the proper persons within the company. James signed
a form acknowledging he received training on Fiesta’s policies.
      While employed at Fiesta, James alleges co-workers “casually” used the
term “nigga,” and he voiced his dislike for its use “three or four times,” citing the
specific dates in his complaint. James asserts that at least one of the workers
using the term was his immediate supervisor and that others were various “lead
persons,” “foremen,” and “shift leaders.” Fiesta does not deny that some of these
co-workers held such informal titles, but it asserts that no individual James
identified as using the offensive term was either a manager or official. James
asserts in his complaint that he told an “elderly white haired caucasion” [sic]
manager, later identified in James’ summary judgment evidence as Mike Mayo,
about his problems with the word’s use in his presence on February 15, 2009, but



      1
          Fiesta's policies also listed theft as grounds for immediate termination.

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claims Mayo took no action. James admitted he never complained to other
management officials about the treatment. On February 22, 2009, Le May
terminated James after discovering that James consumed a food item that was
neither paid for nor listed as a free item. James knew the item was not on the
free item list but insists he would have paid for it. James’ affidavit states that
Hispanic coworkers were permitted to consume non-free items but were not
disciplined for such consumption. When James confronted Le May during his
firing about why the Hispanic employees were not punished for their
consumption in the same manner, James alleges that Le May laughed and said,
“We can’t catch them all.”
      Fiesta disputes James’ allegations that anyone who used “nigga” was
either a manager or an official of the company. Fiesta also sought during
summary judgment to strike certain portions of James’ evidence pertaining to
his co-workers, alleging that James did not sufficiently identify those individuals
to put Fiesta on notice of his claims. Le May stated in his declaration that he
had no knowledge of harassment nor any complaints James had about the work
environment.
      In    April    2009,    Jam es,    proceeding       pro   se,    filed   this
discrimination/retaliation action under Title VII against Fiesta in the district
court. After a brief period of discovery, Fiesta moved for summary judgment in
October 2009. On January 14, 2010, the district court granted Fiesta’s motion
for summary judgment, ordered that James take nothing, and denied the motion
to strike as moot. James filed a timely appeal to this court.
                                        II.
                                        A.
      We review a district court’s grant of summary judgment de novo. Sanders-
Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). Movants bear the
initial burden of demonstrating an absence of material fact issues. Forsyth v.

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Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). If the movant meets that burden,
however, the nonmoving party must then identify evidence in the record which
creates a material fact issue for which it would bear the burden of proof at trial.
Fed. R. Civ. P. 56(e). “[A] dispute about a material fact is ‘genuine’ . . . if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                              B.
                                              1.
       James’ complaint focuses primarily on his termination for theft, which
James claims was either racially discriminatory or retaliatory.2 Title VII of the
Civil Rights Act of 1964, as amended, prohibits discrimination “against an
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).
       The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), created a burden-shifting framework for Title VII discrimination claims
which rely on circumstantial evidence. The factors necessary to establish a
prima facie case include: (1) membership in a protected class; (2) qualification
for the position at issue; (3) subjection to an adverse employment action; and (4)
treatment that was less favorable than similarly situated persons outside the
protected class.3 Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir.


       2
        James also appeals summary judgment on a Title VII hostile work environment claim
based on the racial slurs used by his co-workers. While racially offensive terms certainly have
no place in civilized society, we cannot say that his allegations regarding “casual” use of the
term which he complained about “three or four times” arise to the level of severity or
pervasiveness necessary to sustain his claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (requiring severe or pervasive conduct that creates objectively hostile work
environment, not simple epithets that engender offensive feelings, to implicate Title VII).
Accordingly, we AFFIRM the district court’s grant of summary judgment on this claim.
       3
        Some cases discuss another factor which required that in discriminatory discharge
cases a plaintiff have been replaced by a worker outside plaintiff’s protected class. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). However, this circuit has eliminated that

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2004). Once a prima facie case has been established, the burden shifts to the
employer to provide a non-discriminatory reason for the discharge – the
employer’s burden is one of production, not persuasion. Patrick v. Ridge, 394
F.3d 311, 317 (5th Cir. 2004).              The plaintiff can still prevail if he can
demonstrate that the proffered reason was a pretext for the discriminatory
motive, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000), or
if the employer had “mixed motives” for the adverse action, one of which was
discriminatory, Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010). To show
pretext, a plaintiff may prove that the reason proffered by the employer for
termination is unworthy of credence, or that the employer's decision was more
likely motivated by discriminatory reasons.               Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 257 (1981).
       James is a member of a protected class who was terminated by Fiesta, and
Fiesta does not contest his qualifications for a stocker position. Fiesta contends
that James has failed to produce summary judgment evidence showing more
favorable treatment to co-workers. We agree. James claims that his Hispanic
co-workers received preferential treatment from Fiesta because they were
allowed to consume non-free items without adverse action. However, James has
failed to identify with particularity any actual person who meets this vague
description. Nor did he properly allege – much less produce evidence showing
– that any relevant management officials from Fiesta knew about the alleged
actions taken by James’ Hispanic co-workers. Without more, James has failed
to carry his initial burden in making out a prima facie case.
       Even assuming arguendo that James has made out a prima facie case,
Fiesta provided a valid, non-discriminatory reason for his firing – theft of a non-
free food item. James counters that the reason for the discharge was pretextual


factor as a prerequisite for liability. See Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th
Cir. 2000).

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based on his summary judgment evidence that Hispanic co-workers were not
disciplined for the same infraction of corporate rules. This argument fails for the
same reason: James’ general statement is non-specific and does not identify the
particular Hispanic co-workers he is referring to.4
                                              2.
       James also argues that his discharge came in retaliation for his
harassment complaints. Retaliation claims are also subject to the McDonnell
Douglas framework. “To establish a prima facie case of retaliation, the plaintiff
must establish that: (1) he participated in an activity protected by Title VII; (2)
his employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse employment
action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
James alleges that his complaint to manager Mike Mayo about the use of racial
slurs in the workplace was not acted upon, and that five days later he was
terminated for theft even though Hispanic employees were not punished for
engaging in the same activity. Thus James has shown he engaged in a protected
activity through his complaint of discriminatory conduct, and he suffered an
adverse employment action upon termination.
       For purposes of a prima facie case, the timing of the adverse decision and
its proximity to protected activity can establish an inference of causal
connection. Gee v. Principi, 289 F.3d 342, 346 n.3 (5th Cir. 2002); see also Evans
v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (five day proximity can
establish prima facie evidence of causal connection for retaliation claim). We
assume arguendo that James therefore established a prima facie case of
retaliatory discharge by alleging a five day gap between his complaint to Mayo


       4
          This vague, non-specific allegation regarding his Hispanic co-workers contrasts
markedly with James’ ability to identify specific co-workers who allegedly used racial slurs on
specific dates in the workplace.

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and his firing by Le May. Once an employer produces evidence of a valid reason
for the adverse action, however, our decision in Strong v. Univ. Healthcare Sys.,
L.L.C., 482 F.3d 802, 808 (5th Cir. 2007), makes clear that a plaintiff cannot rely
solely on suspicious timing to carry his burden at the pretextual stage of the
burden-shifting framework. In the face of evidence of a non-retaliatory reason
for the adverse action, a plaintiff must show that retaliatory motives were the
but-for cause of that action. Id. James has produced no such evidence.
       Le May filed a declaration unequivocally stating that he had no actual
knowledge of any of James’ complaints prior to his termination. This unrebutted
evidence also supports Fiesta’s argument that the termination was not
connected with James’ harassment complaints. See Manning v. Chevron Chem.
Co., 332 F.3d 874, 883 (5th Cir. 2003) (holding that plaintiffs cannot establish
causal link when decision-makers were unaware of protected activity). James
simply has not made a contrary showing.
                                             III.
       For the foregoing reasons, the judgment of the district court is affirmed.5
       AFFIRMED.




       5
          James seeks to sanction counsel for Fiesta for alleged unreasonable delay of this
matter’s resolution for their failure to expeditiously serve James with their appellate brief,
which James claims caused his reply brief to be untimely filed. Instead of immediately
seeking sanctions, James’ proper remedy would have been to request an extension in order to
file his reply brief. See 5TH CIR . R. 26.2. Accordingly, the motion for sanctions is DENIED.

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