                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               June 7, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ____________________                      Clerk

                             No. 05-61069

                         Summary Calendar
                       ____________________


     AUNDRA MILLER; ET AL

                Plaintiffs

     AUNDRA MILLER

                Plaintiff - Appellant

          v.

     LOWE’S HOME CENTERS INC; LOWE’S OF MS INC; LOWE’S OF
     HERNANDO INC

                Defendants - Appellees


_________________________________________________________________

          Appeal from the United States District Court
        for the Northern District of Mississippi, Oxford
                         No. 2:04-CV-238
_________________________________________________________________

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Aundra Miller appeals the district

court’s grant of summary judgment to defendant-appellee Lowe’s


     *
        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that this opinion should not be published and is not precedent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.

                                 -1-
Home Centers, Inc., on his claims of a hostile work environment

and wrongful termination on the basis of his race.      The district

court issued an amended final judgment that dismissed the case

with prejudice on September 19, 2005.   For the following reasons,

we AFFIRM.

              I.    FACTUAL AND PROCEDURAL BACKGROUND

     We briefly summarize the relevant facts as set forth in the

district court’s Memorandum Opinion of September 15, 2005.     In

March 2001, Aundra Miller (“Miller”), a black male, was hired as

a delivery driver by one of Lowe’s Home Centers, Inc.’s

(“Lowe’s”) stores located in Memphis, Tennessee.    Miller was

promoted to Delivery Manager in September 2001.    On June 21,

2003, Miller transferred to a Lowe’s store located in Southaven,

Mississippi, where he worked until his eventual termination on

November 5, 2003.

     Shortly after his transfer to the Southaven store location,

Store Manager Lisa Coleman (“Coleman”) began to document several

deficiencies in Miller’s performance as Delivery Manager.     These

deficiencies included: (1) Miller’s failure to sign off on

delivery tickets, which resulted in trucks being left loaded

overnight in violation of company policy; and (2) Miller’s

failure to complete overdue invoices for merchandise that had yet

to be delivered as well as fill out other necessary paperwork.

During an in-person interview on August 15, 2003, Coleman warned


                                 -2-
Miller about these shortcomings, and Miller responded by leaving

work without informing Coleman.    Such an act of insubordination

constitutes a “Class A” violation under Lowe’s Performance

Management Policy that could have resulted in the immediate

termination of Miller.   Instead, Coleman issued Miller a final

written disciplinary notice.

     On September 18, 2003, Zone Manager William Sloan, a white

male, approached Miller about an absence the previous day.

Miller had left early to attend a physical therapy session but

neglected to inform Sloan about the absence.   According to

Miller, Sloan did not believe that Miller had been to physical

therapy and called Miller a liar in a “loud and rude” manner.

Miller subsequently contacted Lowe’s AlertLine to report the

incident because he felt that Sloan’s reaction was improper.

     On October 15, 2003, Coleman and Administrative Manager

Tommy Miller met with Miller to once again discuss the problems

they had discovered in the Delivery Department, including Miller

editing his own schedule without approval, leaving incomplete

safety truck logs, and failing to properly organize the routing

of trucks and otherwise complete his daily duties in a timely

fashion.   Coleman told Miller that she would monitor his progress

in satisfying the required management standards in the future.

Less than two weeks later, on October 27, 2003, Miller allowed

Tony Ester (“Ester”), a delivery driver under Miller’s

supervision, to deliver items purchased by Ester using his

                                  -3-
employee discount for his uncle, which was a violation of company

policy.1   Nevertheless, Miller signed off on the delivery and

never mentioned the incident to Coleman.

     On November 4, 2003, District Operations Training Manager

Heather Davis (“Davis”) conducted a random audit of the Delivery

Department.   The audit revealed numerous problems, including

incomplete paperwork, vehicle service problems, a lack of

appropriate forms, and employee scheduling irregularities.    Given

Miller’s previous infractions and warnings, Coleman terminated

Miller for poor job performance on November 5, 2003, citing the

various Delivery Department violations that had been identified

by Davis during the random audit.     Importantly, the incident with

Sloan concerning Miller’s previous absence to attend physical

therapy was not mentioned as a reason for his termination, and

there is no indication that Sloan directly participated in the

termination decision at all.

     After filing a complaint with the United States Equal

Employment Opportunity Commission (“EEOC”) and receiving a right-

to-sue notice,2 Miller timely filed his pro se suit against

Lowe’s on August 30, 2004, alleging harassment and termination on

     1
        In his deposition, Miller acknowledged that this action
violated Lowe’s policies: “I knew it was an improper purchase.
He should have never made the delivery, but I - he was the only
one there to deliver on that day.”
     2
        Based on its investigation, the EEOC determined that it
was unable to conclude that Lowe’s had violated any applicable
statutory law.

                                -4-
the basis of his race in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981.

On July 14, 2005, Lowe’s moved for summary judgment, arguing that

Miller had not produced sufficient evidence to raise a genuine

issue of material fact that his termination had anything to do

with race.   More than a month after the deadline, Miller filed

his response to Lowe’s motion for summary judgment but did not

respond to Lowe’s legal arguments or make any reference to

applicable law.3

     On September 15, 2005, the district court issued a

Memorandum Opinion, granting Lowe’s motion for summary judgment

and dismissing both of Miller’s claims with prejudice.    First,

the district court concluded that Miller had not established a

prima facie case of race discrimination because, although he was

a member of a protected class, the numerous deficiencies cited

for his termination indicated that he was not qualified for the

position.    Miller had also failed to produce any evidence that he

was terminated because of his race or that he was replaced by a



     3
        The fact that Miller did not file a timely response to
Lowe’s motion for summary judgment does not alter the ordinary
standards applicable for our review of the district court’s
judgment. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 161
(1970) (“[T]he party moving for summary judgment has the burden
to show that he is entitled to judgment under established
principles; and if he does not discharge that burden then he is
not entitled to judgment. No defense to an insufficient showing
is required.”) (internal quotations omitted); see also Anthony v.
Petroleum Helicopters, Inc., 693 F.2d 495, 497 (5th Cir. 1982).

                                 -5-
member outside of his protected class.4   Second, the district

court concluded that Miller’s confrontation with Sloan concerning

his absence from work to attend a physical therapy session was

not sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment.   Moreover,

Miller had provided no evidence that Sloan’s comments were

related to race, proximate in time to the termination, or related

to Coleman’s ultimate termination of Miller for poor job

performance.

     The district court entered its amended final judgment on

September 19, 2005.   Miller filed his timely notice of appeal on

October 13, 2005.5


     4
        Even if he had established a prima facie case of
discrimination, the district court further concluded that Miller
had not produced substantial evidence that the legitimate,
nondiscriminatory reasons proffered by Lowe’s for his termination
were mere pretext for discrimination.
     5
        Miller’s notice of appeal was defective in at least one
respect because it identified the Supreme Court of Mississippi,
rather than the United States Court of Appeals for the Fifth
Circuit, as the court to which the appeal was taken. Under FED.
R. APP. P. 3(c)(1)(C), the notice of appeal must identify the
court to which the appeal is taken. Although the dictates of
Rule 3 are “jurisdictional in nature,” we are particularly
mindful of the Supreme Court’s instruction that courts should
liberally construe such requirements because Miller appears
before this court pro se. See Smith v. Barry, 502 U.S. 244, 248
(1992). Moreover, Lowe’s does not challenge our jurisdiction
over this appeal or otherwise claim that it did not have adequate
notice of Miller’s appeal. Id. at 248-49 (“[T]he notice afforded
by a document, not the litigant’s motivation in filing it,
determines the document’s sufficiency as a notice of appeal.”).
Therefore, we conclude that the notice of appeal was effective
and decline to dismiss the appeal for lack of jurisdiction.

                                -6-
                           II.   DISCUSSION

       Before proceeding to the merits of this appeal, Lowe’s

argues that Miller’s brief is technically deficient with respect

to the requirements of FED. R. APP. P. 28 and Fifth Circuit Rule

28.6    See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.

1994) (“[W]hile we construe pro se pleadings liberally, pro se

litigants, like all other parties, must abide by the Federal

Rules of Appellate Procedure.”).    Although Miller’s brief

purports to raise four separate issues on appeal, the argument

section of the brief fails to expound upon these theories in any

logical fashion or cite any relevant legal authority.7    Moreover,

the statement of facts in Miller’s brief inappropriately includes

bare allegations that the EEOC mishandled his complaint and

       6
        Lowe’s also maintains that Miller failed to comply with
Fifth Circuit Rule 30.1.2, which requires the appellant to file
Record Excerpts and serve a copy of the excerpts on opposing
counsel. Miller included several documents in the Record
Excerpts that are not part of the certified record on appeal,
including Defendant’s First Set of Requests for Admission to
Plaintiff Miller, documents from the Tennessee Department of
Labor and Workforce Development, a “Sworn Statement of Keith
Lucas,” telephone records of Earnestine Miller, and Lowe’s Sales
Processing and Electronic Due Files. We will not consider these
additional documents in our review on this appeal. See Wallace
v. Tex. Tech Univ., 80 F.3d 1047, 1047 (noting that appellate
review is limited to the summary judgment record before the
district court).
       7
        As best we can discern from his brief, Miller contends
that the district court overlooked his earlier promotion to
Delivery Manager and failed to consider twelve pages of his
deposition that allegedly refuted Lowe’s legitimate,
nondiscriminatory reasons for terminating him. These arguments
find no support in the record on appeal, and Miller fails to cite
any relevant case law related to these issues.

                                  -7-
Lowe’s falsified his performance reports and raises a new claim

of retaliation against Lowe’s for the first time on appeal.

     Although pleadings filed pro se are generally held to less

stringent standards than those drafted by lawyers, pro se

litigants must still reasonably comply with procedural rules.

See Grant v. Cuellar, 59 F.3d 523, 524-25 (5th Cir. 1995)

(dismissing pro se litigant’s appeal for failure to comply with

FED. R. APP. P. 28).   We agree with Lowe’s that Miller has waived

his retaliation claim by not including it in his complaint and

raising it for the first time on appeal.    See Charter Sch. of

Pine Grove, Inc. v. St. Helena Parish Sch. Bd., 417 F.3d 444, 447

(5th Cir. 2005) (“Ordinarily, arguments not raised in the

district court cannot be asserted for the first time on

appeal.”).    Notwithstanding the other technical deficiencies of

Miller’s brief, however, we proceed to the merits of the district

court’s summary judgment determination in light of our well-

established obligation to liberally construe such technical

requirements when faced with pro se parties.    See, e.g.,

Barksdale v. King, 699 F.2d 744, 746 (5th Cir. 1983).

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

novo.    Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.

1995).    Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

                                 -8-
is entitled to judgment as a matter of law.”    FED. R. CIV. P.

56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).   In determining whether a genuine issue of material fact

exists, we evaluate all facts in the light most favorable to the

non-moving party.    See Matsuhita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

     Our independent review of the record reveals no reversible

error on the part of the district court in granting Lowe’s motion

for summary judgment and dismissing Miller’s claims with

prejudice.   With respect to Miller’s termination claim, the

district court correctly concluded that Miller had failed to meet

his initial burden of establishing a prima facie case of

discrimination under the familiar McDonnell Douglas framework.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

To establish a prima facie case of discrimination, the plaintiff

must show that: (1) he belongs to a protected class; (2) he was

qualified for the position; (3) he was discharged; and (4) after

he was discharged, he was replaced by someone who is not a member

of the protected class.    Frank v. Xerox Corp., 347 F.3d 130, 137

(5th Cir. 2003).    Although Miller belongs to a protected class,

there was no genuine issue of material fact that Miller had been

terminated because of his race or that he was replaced by someone

outside of his protected class.    Aside from naked assertions,

Miller provided no evidence that his confrontation with Sloan

over his work absence was motivated by race or that this incident

                                  -9-
was related to his termination almost two months later for poor

job performance.   Even viewing the evidence in the light most

favorable to Miller, the district court correctly granted Lowe’s

motion for summary judgment based on Miller’s failure to

establish a prima facie case of discrimination.8

     The district court also correctly concluded that the

incident with Sloan did not create a genuine issue of material

fact with respect to Miller’s harassment claim.    Again, Miller

has wholly failed to demonstrate that Sloan’s behavior was

racially motivated and “sufficiently severe or pervasive so as to

alter the conditions of employment and create an abusive working

environment.”   Celestine v. Petroleos de Venezuella SA, 266 F.3d

343, 353 (5th Cir. 2001).   Further, the district court noted that

Sloan’s disciplinary comment was neither proximate in time to the

termination nor related to the adverse employment decision of

Coleman to terminate Miller for poor job performance as a

manager.   See Krystek v. Univ. of S. Miss., 164 F.3d 251, 256

(5th Cir. 1999) (dismissing as a matter of law comments made two

     8
        Because we conclude that Miller failed to meet his prima
facie burden, we need not reach the district court’s reasoning
with respect to Lowe’s proffered legitimate, nondiscriminatory
reasons for terminating Miller. See Okoye v. Univ. of Tex.
Houston Health Sci. Ctr., 245 F.3d 507, 511 (5th Cir. 2001)
(noting that the court of appeals can affirm a district court’s
grant of summary judgment on any grounds supported by the
record). We note, however, that Miller’s documented history of
shortcomings as a Delivery Manager suggest that he was not
qualified for the position in the first place and lend additional
support to Lowe’s proffered nondiscriminatory reasons for
terminating him.

                               -10-
years after an adverse employment decision and by someone who did

not participate in that decision).    Accordingly, we find no error

in the district court’s grant of summary judgment to Lowe’s on

this claim as well.

                        III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment to Lowe’s Home Centers, Inc.




                               -11-
