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

                                                 FILED
                                                                            July 20, 2009

                                       No. 08-31008                    Charles R. Fulbruge III
                                                                               Clerk

JAMES E. STONE, SR

                                                   Plaintiff - Appellant
v.

PARISH OF EAST BATON ROUGE, Through Recreation and Park
Commission for the Parish of East Baton Rouge

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-401


Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.
PER CURIAM:*
       James Stone appeals the district court’s summary judgment in favor of his
employer, Parish of East Baton Rouge, through Recreation and Park
Commission for Parish of East Baton Rouge (BREC), on his discrimination,
harassment, and retaliation claims. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-31008

                                     I. Facts
      BREC hired Stone as an assistant supervisor in November 2001. In July
2004, Stone was promoted to a manager position at Webb Park. At this point,
Stone began receiving negative feedback. For example, two long-time, African-
American employees whom he supervised requested transfers, Stone was
disciplined for unauthorized delegation of duties on multiple occasions, and one
employee reported Stone for stealing soft drinks from the store. In April 2005,
Stone was placed on probation after delegating computer and cash register
responsibilities to a part-time clerk despite the previous warnings. Right after
this, another of Stone’s subordinates complained about “various incidences of
mismanagement.” Based on these complaints, Stone was transferred to another
facility to observe BREC’s best management practices.             Stone was twice
reprimanded at the new facility—once for bringing his wife to work during one
of his shifts and again for failing to lock up after he left for the day.
      In May 2005, Stone sent correspondence to BREC board members and
executives asserting that he was being discriminated against because of his race.
In response, BREC’s Human Resources manager and Superintendent met with
Stone. Although those present testified that Stone admitted he did not believe
he was being discriminated against because of his race, BREC nevertheless
conducted an investigation into the allegations.           Three employees were
interviewed, all of whom were African-American and all of whom denied any
discrimination.
      Seven weeks after his first transfer, Stone was again transferred after
complaining about a “highly explosive” incident between himself and a clerk. At
his new location, Stone was reprimanded for leaving a clerk unsupervised and
telling the clerk that he was working from home on five different occasions. The
next week, a female clerk complained that Stone was harassing her. Stone was
terminated on June 30, 2005.

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      In July 2005, Stone appealed his termination. The committee reviewing
his termination concluded that it should be upheld. A formal appeal hearing
was subsequently held by a three-person panel. Stone was allowed to present
evidence during the two-and-a-half-hour hearing. Three days later, the panel
found no clear or compelling evidence that Stone had been wrongfully
terminated or suffered discrimination. Stone filed a complaint with the Equal
Employment Opportunity Commission (EEOC). The Louisiana Commission on
Human Rights concluded that no statutes had been violated, and the EEOC
adopted these findings.
      In June 2006, Stone filed suit in federal district court asserting various
federal claims including a claim under 42 U.S.C. § 1981 and claims of race
discrimination, race-based harassment, and retaliation in violation of Title VII
of the Civil Rights Act of 1964. Stone also asserted a Louisiana state law claim
for intentional infliction of emotional distress. Two years later, the district court
granted summary judgment on all federal claims and dismissed the state law
claim without prejudice. Stone then filed this appeal.
                            II. Standard of Review
      This court reviews a district court’s grant of summary judgment de novo.
Grenier v. Med. Eng’g Corp., 243 F.3d 200, 203 (5th Cir. 2001). Summary
judgment is appropriate if “the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” F ED R. C IV.
P. 56(c). On a motion for summary judgment, a court must view the facts in the
light most favorable to the non-movant. LeMaire v. La. Dep’t of Transp. & Dev.,
480 F.3d 383, 387 (5th Cir. 2007). No genuine issue of material facts exists if the
summary judgment evidence is such that no reasonable juror could find in favor
of the non-movant. See Hockman v. Westward Commc’ns, 407 F.3d 317, 325 (5th
Cir. 2004).

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                                III. Discussion
A. Racial Discrimination
      Stone contends that he presented direct and circumstantial evidence of
racial discrimination sufficient to meet his burden as a non-movant responding
to a summary judgment motion.
      1. Direct Evidence
      Stone claims that his supervisor called him “bubba” and used the terms
“you people” or “your people.” Stone asserts that these are racially charged
terms providing direct evidence of discriminatory intent.
      BREC argues that Stone has not shown that these comments were racially
motivated and asks this court to classify these remarks as “stray remarks.”
BREC cites several cases where the plaintiff presented evidence of more racially
charged remarks than those alleged by Stone and where the court found such
comments insufficient as direct evidence under the “stray remarks” doctrine.
See Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342-44 (5th Cir.
2002); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 470 (5th Cir. 2002);
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222-23 (5th Cir. 2001).
      A Title VII racial discrimination claim can be established through either
direct or circumstantial evidence. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003).   Where a plaintiff produces direct evidence of discrimination, he is
“entitled to bypass the McDonnell Douglas burden-shifting framework commonly
applied in discrimination cases and proceed directly to the question of liability.”
Moore v. U.S. Dep’t of Agric., 55 F.3d 991, 995 (5th Cir. 1995). “In such ‘direct
evidence’ cases, ‘the burden of proof shifts to the employer to establish by a
preponderance of the evidence that the same decision would have been made
regardless of the forbidden factor.’” Fierros v. Tex. Dep’t of Health, 274 F.3d 187,
192 (5th Cir. 2001) (quoting Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858,
861 (5th Cir. 1993)).

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       This court has held that “for comments in the workplace to provide
sufficient evidence of discrimination, they must be ‘1) related [to the protected
class of persons of which the plaintiff is a member]; 2) proximate in time to the
[complained-of adverse employment decision]; 3) made by an individual with
authority over the employment decision at issue; and 4) related to the
employment decision at issue.’” Patel, 298 F.3d at 343-44 (quoting Wallace,
271 F.3d at 222-25).
       Stone made little effort to meet the four-prong test. He argues that the
four-prong test is only used where “comments are the sole evidence offered to
support a finding of discrimination.” Although Stone is correct that the Supreme
Court declined to use the four-prong test in favor of the McDonnell Douglas
framework where the evidence was circumstantial, Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000), this court continues
to apply the four-prong test “when [as here] a remark is presented as direct
evidence of discrimination apart from the McDonnell Douglas framework.”
Laxton, 333 F.3d at 583 n.4.
       We do not condone insensitive and boorish remarks such as those alleged
by Stone here. However, the evidence presented does not show either sufficient
temporal proximity or any relationship between the remarks and the challenged
conduct. Accordingly, these remarks do not mandate reversal of the district
court’s judgment.1
       2. Circumstantial Evidence
       Circumstantial evidence is examined under the well-known McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411


       1
        Stone also argues that he is proceeding under a “mixed-motive” analysis. Stone may
only proceed under a mixed-motive analysis where direct evidence is presented and the
employer asserts that the same adverse employment decision would have been made
regardless of the discrimination. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir.
2004). Because Stone did not bring any direct evidence, his mixed-motive theory is unavailing.

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U.S. 792 (1973). To show a prima facie case of discriminatory discharge, a
plaintiff must first establish that he (1) is a member of a protected class, (2)
suffered an adverse employment action, (3) was qualified for his position, and (4)
was replaced by someone outside of the protected class or that similarly situated
employees of a different race were treated more favorably. Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).           If a plaintiff
successfully establishes a prima facie case of discrimination, then “the employer
must rebut a presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for the adverse employment action.”          Id.   If the
employer meets its burden, the burden “shifts back to the plaintiff to present
substantial evidence that the employer’s reason was pretext for discrimination.”
Id. If the plaintiff can show pretext, that showing, coupled with the prima facie
case, will usually be sufficient to survive summary judgment. Id.
      The district court held that Stone could not establish the fourth element
of a prima facie case. Stone was replaced by an African-American female and
therefore was not replaced by someone outside of his protected class. Despite
Stone’s contentions that two white employees were treated more favorably than
he, the district court disagreed. Stone pointed first to another manager, holding
the same position as Stone, who gave a private golf lesson while on the clock.
Stone reported this to a supervisor and the manager was disciplined for
inaccurate time keeping.    Stone also noted that an assistant manager was
allowed to have a clerk assemble a computer and complete tournament sheets
and score cards on the computer. The district court observed, however, that
Stone provided no evidence of any manager, black or white, who engaged in the
type or number of employment infractions that Stone did. The district court also
emphasized that the manager who gave private golf lessons was given a written
warning, much like those given to Stone after several of his incidents. As a
result, the district court found that there was no way to equate the entirety of

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Stone’s work performance with one violation committed by either of these
managers and concluded that Stone had not established a prima facie case.
      This court has held that “in disparate treatment cases involving separate
incidents of misconduct . . . for employees to be similarly situated those
employees’ circumstances, including their misconduct, must have been ‘nearly
identical.’” Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 213 (5th Cir.
2004) (holding that a district court erred when it suggested that “comparably
serious” misconduct was by itself enough to make employees similarly situated
rather than instructing the jury that the employees’ circumstances must have
been “nearly identical”); see also Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296,
304-05 (5th Cir. 2000) (holding that an employee had not proved disparate
treatment where the circumstances surrounding the disciplinary actions were
different).
      Under our precedent, Stone has not shown himself to be “similarly
situated” to employees of a different race who engaged in nearly identical
misconduct and yet were treated more favorably than he. As such, Stone has
failed to make a prima facie case. Even if he had made such a case, he failed to
establish that BREC’s proffered reason for the termination – Stone’s multiple
violations of rules and policy – was pretextual.
B. Harassment
      Although he asserted a claim of harassment in the district court, Stone has
not raised this issue on appeal, and therefore it is waived.2 See United States v.
Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
C. Retaliation
      Stone alleges that he was subject to retaliation for his complaints of race
discrimination. To establish a prima facie case for retaliation, Stone must

      2
         Similarly, Stone has not raised any separate issue regarding his 42 U.S.C. § 1981
claim, apparently treating it the same as his Title VII discrimination claim.

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demonstrate: “‘(1) that [he] engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link existed between
the protected activity and the adverse employment action.” Evans v. City of
Houston, 246 F.3d 344, 352 (5th Cir. 2001) (quoting Long v. Eastfield Coll.,
88 F.3d 300, 304 (5th Cir. 1996)). If Stone makes a prima facie case, the same
McDonnell Douglas burden-shifting analysis is employed. McCoy v. City of
Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).
      The district court dismissed Stone’s retaliation claim for failing to
establish a prima facie case.     Specifically, Stone did not show any casual
connection between his termination and his complaint of race discrimination, nor
did he show that any of BREC’s proffered reasons for discipline were pretextual.
On this appeal, Stone discusses complaints he allegedly made; however, he does
not acknowledge any of BREC’s proffered reasons for his termination or argue
that they were pretextual. We conclude that the district court properly granted
summary judgment on this claim.
                                IV. Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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