                      REVISED October 6, 2011

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

                                                              FILED
                                                           October 5, 2011
                               No. 11-10120
                             Summary Calendar               Lyle W. Cayce
                                                                 Clerk

DON WESLEY

                                          Plaintiff–Appellant
v.

GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL 745,
AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS; BRENT TAYLOR

                                          Defendants–Appellees



                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      This case involves a claim brought under 42 U.S.C. § 1981 by a terminated
employee against his former union, which represented him in a grievance
hearing in connection with his termination.     The plaintiff–appellant, Don
Wesley, alleges that the defendants–appellees, General Drivers, Warehousemen
and Helpers Local 745 (“Local 745”) and Brent Taylor, the union representative,
discriminated against him on account of his race by failing to argue during the
grievance hearing that Wesley was being terminated for a racially
                                 No. 11-10120

discriminatory reason.     The district court granted summary judgment for
defendants. We affirm.
                              I. BACKGROUND
      Wesley is an African-American former employee of Yellow Transportation,
Inc. While he was employed by Yellow Transportation, Wesley was a member
of Local 745. In 2005, Wesley was fired from his job at Yellow Transportation.
The reason given for his termination was that he had been caught by security
surveillance cameras overstaying his break period while playing a pornographic
video in the break room.
      Local 745 pursued a grievance of Wesley’s termination on his behalf. On
April 19, 2005, Taylor represented Wesley at a grievance hearing. During the
hearing, Taylor presented evidence and argued that Wesley should not be
terminated. Wesley also had an opportunity to speak at the hearing. The
committee presiding over the hearing denied Wesley’s grievance. There were no
further avenues for pursuing the grievance beyond that level.
      Following the grievance hearing, Wesley filed a complaint naming Taylor
and Local 745 as defendants. The complaint alleged that Taylor and Local 745
had violated 42 U.S.C. § 1981 by deliberately discriminating against Wesley on
account of his race. The basis for Wesley’s complaint was that Taylor had failed
to argue during the grievance hearing that Yellow Transportation had chosen
to terminate Wesley because of his race.
      Taylor and Local 745 moved for summary judgment. The district court
granted the motion. Wesley appeals.
                         II. STANDARD OF REVIEW
      Summary judgment is proper when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). We review the district court’s grant of summary judgment de
novo, viewing “all facts and evidence in the light most favorable to the


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non-moving party.” Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th
Cir. 2010) (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir.
2010)). Where, as here, the “burden at trial rests on the non-movant, the
movant must merely demonstrate an absence of evidentiary support in the
record for the non-movant’s case.” Bayle v. Allstate Ins. Co., 615 F.3d 350, 355
(5th Cir. 2010) (citation omitted). Satisfying this initial burden shifts the burden
to the non-moving party to produce evidence of the existence of a material issue
of fact requiring a trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, [325]
(1986)).
                                    III. DISCUSSION
       Wesley has brought suit against Local 745 and Taylor under 42 U.S.C.
§ 1981.1 To establish a prima facie case under § 1981, a plaintiff must show: (1)
that he is a racial minority; (2) that the defendant intended to discriminate
against him on the basis of race; and (3) that the discrimination concerns one or
more of the activities enumerated in the statute. Felton v. Polles, 315 F.3d 470,
483 (5th Cir. 2002) (citation omitted), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). A plaintiff must show
that the discrimination was purposeful.                Gen. Bldg. Contractors Ass’n v.
Pennsylvania, 458 U.S. 375, 389 (1982).
       The Supreme Court has held that the burden-shifting framework
developed in the context of Title VII in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), also applies to claims of racial discrimination under § 1981.
Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989), superseded on other


       1
         Section 1981(a) provides that “[a]ll persons within the jurisidiction of the United
States shall have the same right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens.” The statute defines “make and enforce contracts”
to include “the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42
U.S.C. § 1981(b).

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grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071;
see also Lauderdale v. Tex. Dep’t of Criminal Justice, Inst. Div., 512 F.3d 157,
166 (5th Cir. 2007). A plaintiff can establish a prima facie claim for racial
discrimination under Title VII by showing that:
       (1) he is a member of a protected class, (2) he was qualified for the
       position at issue, (3) he was the subject of an adverse employment
       action, and (4) he was treated less favorably because of his
       membership in that protected class than were other similarly
       situated employees who were not members of the protected class,
       under nearly identical circumstances.
Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009) (citing
McDonnell Douglas, 411 U.S. 792 at 802). The Supreme Court also noted,
however, that cases of racial discrimination are fact-specific, stating that the
McDonnell Douglas four-part test would not necessarily be applicable to all fact
situations. 411 U.S. at 802 n.13.
       The Fifth Circuit reworked the McDonnell Douglas test to fit the fact
situation in Stalcup v. Commc’n Workers of Am., 44 F. App’x 654, at *3 (5th Cir.
2002). That case, factually very similar to Wesley’s, involved a lawsuit brought
by a terminated employee against her former union, claiming that the union had
discriminated against her on account of her disability when it failed to file a
grievance against her employer for disability discrimination. Id. at *1. There,
we held that the plaintiff had to prove the following elements to state a claim for
disability discrimination against her union: “(1) she suffers from a disability; (2)
she was subject to an adverse union action; and (3) she was treated less
favorably than non-disabled employees.”2 Id. at *3 (citing Alexander v. Local
496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 402–03 (6th Cir. 1999)). For

       2
         We explained in Stalcup that the second McDonnell Douglas element, whether one is
qualified for a particular job, is irrelevant where the complaint is based on discrimination in
the grievance process, because one is “entitled to a non-discriminatory grievance process
regardless of [one’s] job qualifications.” Id. at *3 n.4. The same rationale justifies removing
this element in Wesley’s case.

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Wesley to state a claim for racial discrimination against Local 745 and Taylor,
he must make a similar showing. First, he must show that he was subjected to
an adverse union action. Second, he must show that he was treated less
favorably by the union than employees of different races. Third, because this
claim is brought under § 1981, he must prove that this differential treatment
arose from purposeful racial discrimination.
      Wesley argues that he was subjected to adverse union action because
during his grievance hearing, his union representative, Taylor, never argued
that Yellow Transportation had terminated him because of his race. Wesley
invokes Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), superseded on other
grounds by statute, Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104
Stat. 5114, for the proposition that § 1981 “does not permit a union to refuse to
file any and all grievances presented by a black person on the ground that the
employer looks with disfavor on and resents such grievances.” Id. at 669. The
facts in Goodman are distinct from the facts here. In Goodman, the district
court found that the defendant unions were aware of employer discrimination
but refused to file grievances requested by employees, that the unions had
ignored grievances based on racial discrimination, and that the unions had
“regularly refused to include assertions of racial discrimination in grievances.”
Id. at 666. Here, there is no evidence that Wesley’s complaints about his union
representation are shared by any other union members. There is no evidence
that Local 745 or Taylor has adopted a practice of ignoring race-related
grievances of members. There is no evidence about any member’s interaction
with the union aside from Wesley’s. Having failed to present any evidence in
this regard, Wesley cannot rely on Goodman for relief. See Faragalla v. Douglas
Cnty. Sch. Dist. RE 1, 411 F. App’x 140, 159–60 (10th Cir. 2011) (holding that
Goodman did not support former union member’s § 1981 claim for racial



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discrimination against her union where she had failed to prove that the union
had a “policy or practice of declining to assert discrimination claims”).
      Although Wesley has not shown that Local 745 and Taylor have engaged
in a practice of failing to pursue race-related grievances, Wesley may still
recover under § 1981 by proving that his own experiences with the union were
tainted by racial discrimination. Again, this first requires that Wesley show he
was subjected to adverse union action. Wesley has failed to do so.
      Wesley has not alleged that Local 745 or Taylor refused to bring a race-
related grievance on his behalf. To the contrary, when Wesley contested his
termination, Taylor represented him. Although Wesley argues that Taylor failed
to raise racial discrimination in the hearing, Taylor did present evidence
regarding disparate treatment of employees of different races. Specifically, in
defense of Wesley, Taylor presented evidence that a white employee had once
played a pornographic video during work hours and had not been terminated.
Taylor also presented statements from several different employees that
pornographic videos were frequently shown in the Yellow Transportation
workplace and that others had not been disciplined for showing them. In
addition, Taylor mentioned that a white employee who had called a black
employee “the N word” had not been fired, and he argued that there was no
reason to treat Wesley more harshly. Wesley had several opportunities to speak
in the hearing, during which he also raised examples of what he perceived to be
unequal treatment of employees based on race.         While Wesley may have
preferred Taylor to address racial discrimination against Wesley more directly,
it cannot be said that Taylor refused to raise the issue.
      At the conclusion of the hearing, the following exchange took place:
      [Grievance Committee]: Mr. Wesley I have two (2) questions for you.
      The first question is have you had the opportunity to put everything
      on the record you want this Committee to know about your case?
      Wesley: Yes.

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      [Grievance Committee]: The second question is has Local 745
      properly represented you in defense of your case?
      Wesley: Yes.
Wesley’s argument that he was subjected to adverse union action during the
hearing has less force given his opportunity to put additional evidence or
argument before the Committee and his agreement that he was well represented
by Local 745 during the hearing. See Allensworth v. Gen. Motors Corp., 945 F.2d
174, 179 (7th Cir. 1991) (holding that a union member had not stated a claim for
racial discrimination by the union in part because he had “professed to be
satisfied” with the union’s action on his behalf).
      Even if Wesley had presented evidence that he was subjected to adverse
union action, he has failed to show that he was treated less favorably by the
union than employees of other races. The only evidence presented that would
allow comparison of the union’s treatment of Wesley with its treatment of other
members was given by Taylor, who stated in a declaration attached to the
summary judgment motion: “I did not handle Wesley’s grievance any differently
than I would have handled any other employee’s grievance, regardless of their
race or national origin.” Wesley has not presented any evidence to contradict
this statement. See Donaldson v. Taylor Prods. Div. of Tecumseh Prods. Co., 620
F.2d 155, 159 (7th Cir. 1980) (holding that a union member failed to state a
claim for racial discrimination by the union when he “failed to produce a scintilla
of evidence that the grievances of similarly situated white employees were
treated differently”). Because Wesley has failed to prove that he was treated
differently than union members of other races, it goes without saying that he has
failed to prove that the union purposefully discriminated against him because
of his race.
                              IV. CONCLUSION




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      Wesley has failed to state a prima facie claim for racial discrimination by
the union under § 1981, and therefore the district court was correct to grant the
defendants’ motion for summary judgment. Accordingly, we AFFIRM.




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