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

                                                 FILED
                                                                            April 20, 2009
                                     No. 08-60559
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DOYLE MARTIN

                                                   Plaintiff-Appellant

v.

WARING INVESTMENTS INC., formerly known as Waring Oil Company;
WARING OIL COMPANY LLC; PAT HURST, Individually and In Her Official
Capacity as Supervisor

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:06-CV-26


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Doyle Martin (“Martin”), a sixty-three year old, white male, filed suit
against Waring Investments, Inc. and his supervisor Pat Hurst, individually and
in her official capacity, (jointly “Waring”) alleging employment discrimination
based on race and sex discrimination in violation of Title VII, 42 U.S.C. § 2000e-
2(a)(1), and age discrimination in violation of the Age Discrimination in



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60559

Employment Act (“ADEA”), 29 U.S.C. § 621. The district court granted Waring’s
motion for summary judgment and dismissed Martin’s related state law claims.
Martin appeals. We AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      From May 1999 until March 2005, Martin was employed by Waring as the
manager of a convenience store in Vicksburg, Mississippi. Recognizing that cash
shortages may occur for a number of reasons not associated with theft, Waring
implemented a cash control policy that allowed management to pinpoint the
source of and explain why a cash shortage occurred. Waring’s policy requires
store managers to balance the cash in the store safe each morning when they
begin their shifts. The manager uses “Pay Point Reports” and “Daily Shift
Reports,” which provide a list of all transactions for the previous twenty-four
hour period. After a manager verifies the reports, he then compares that data
with the amount of cash actually in the safe. The safes at Waring have a “bill
reader” that actually reads and records all currency deposited into the safe. The
manager deposits cash from the cash register into the safe throughout his shift.
      On March 14, 2005, Hurst, Martin’s supervisor, conducted a random audit
of the safe at Martin’s store. The audit did not demonstrate any irregularities
with the functionality of the safe or bill reader. On March 21, 2005, Martin
worked his full shift. On March 22, 2005, Martin arrived to work at his normal
time but left work early because he became ill. When Martin returned to work
on March 23, 2005, he was unable to balance the safe due to a $433.00 cash
shortage. Martin then contacted Hurst to assist him in locating the time and
source of the shortage.
      Hurst reviewed the bill reader report, the Point Report, and the Daily Shift
Report from March 22, 2005, but was unable to locate the cause of the cash
shortage. Hurst then reviewed the bill reader report from March 21, 2005, but
was unable to review the Pay Point Report and the Shift Report for March 21st



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because Martin threw the reports away.1 Martin was suspended and ultimately
terminated from Waring.
      On February 27, 2006, Martin initiated a lawsuit against Waring and
Hurst alleging race, sex, and age discrimination in violation of Title VII and the
ADEA.     Martin also asserted pendent state law claims for defamation and
intentional infliction of emotional distress against Waring and Hurst.
      On May 29, 2007, Waring filed a motion for summary judgment, which the
district court granted on May 29, 2008. Martin appeals.
                                 II. ANALYSIS
A. Discrimination Claims
      This Court reviews the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citation
omitted). Summary judgment is proper when “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). In making a determination as to whether
there is a genuine issue of material fact, this Court considers all of the evidence
in the record but refrains from making credibility determinations or weighing the
evidence. Turner, 476 F.3d at 343 (citation omitted). We draw all reasonable
inferences in favor of the nonmoving party, but “a party cannot defeat summary
judgment with conclusory allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.’” Id. (citations omitted). “Summary judgment is appropriate
if a reasonable jury could not return a verdict for the nonmoving party.” Id.
(citation omitted).




      1
        These reports would have been generated by Martin at the beginning of
his shift on March 22, 2005.

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       Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Under the ADEA, it is “‘unlawful for an
employer to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual . . . because of such individual’s age.’” See
EEOC v. Mississippi, 837 F.2d 1398, 1399 (5th Cir. 1988) (quoting 29 U.S.C. §
623(a)(1)). Martin has not provided direct evidence of discrimination, therefore,
his Title VII and ADEA claims based on circumstantial evidence are analyzed
under the burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973).             See Turner, 476 F.3d at 345; see also
Sandstad v. CB Richard Ellis, Inc. 309 F.3d 893, 896 (5th Cir. 2002).
       Martin must first establish a prima facie case of discrimination.                    See
Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007). The district court
found that Martin successfully established a prima facie case of race, sex, and age
discrimination.2 Appellees agree that “whether or not Martin established a
prima facie case of discrimination is not an issue in this appeal;” therefore, we
move to the next step of the McDonnell Douglas burden-shifting framework.
       Because Martin established a prima facie case of discrimination, Waring
must rebut the presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for the adverse employment action. Turner, 476 F.3d
at 345 (citation omitted). If Waring successfully meets this burden, Martin must
then present substantial evidence that Waring’s reason was pretext for
discrimination. Id. (citation omitted). If Martin demonstrates that Waring’s



       2
         In Martin’s statement of issues, he argues that the district court erred in determining
that Martin failed to make out a prima facie case of discrimination on the basis of race. The
district court did, however, find that Martin successfully demonstrated a prima facie case of
discrimination on the basis of race, sex, and age.

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proffered explanation is merely pretextual, that showing, coupled with the prima
facie case will typically be sufficient to survive summary judgment. Id. To
demonstrate       pretext,     Martin      must     show     that     Waring’s      legitimate,
nondiscriminatory reason is not true, but is instead a pretext of discrimination.3
See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
       We hold that Waring provided a legitimate, nondiscriminatory reason for
suspending and terminating Martin’s employment. Waring asserts that Martin’s
termination was the result of an “unexplained” cash shortage. The cash shortage
was unexplained because Martin failed to maintain and produce paperwork that
would have aided Hurst in her attempts to pinpoint where and when the cash
shortage occurred. Martin readily admitted to “throwing away” the Pay Point
Report and Daily Shift Report needed to evaluate the cash transactions occurring
on March 21, 2005. This hindered Hurst’s investigation of the cash shortage.
       Because we find that Waring has sufficiently established a legitimate,
nondiscriminatory reason for suspending and terminating Martin that is not
related to Martin’s race, sex, or age, Martin must now demonstrate that Waring’s
proffered explanation is merely pretextual. Martin fails to provide evidence in
support for his argument that Waring’s legitimate, nondiscriminatory reason for
suspending and terminating Martin is pretext.
       Martin argues that a reasonable juror could have determined that Waring
lied about the reasons for his termination, and that the district court improperly
took on the role of trier of fact. Martin argues that he was terminated because
$433.00 was missing and not because he failed to maintain and produce the Pay
Point Report and Daily Shift Report, which allows this Court to infer that
Waring’s proffered legitimate, nondiscriminatory reason was either a post hoc


       3
          A plaintiff may also show pretext by establishing that the defendant’s reason, while
true, is only one of the reasons for its conduct and another motivating factor is the plaintiff’s
protected characteristic. See Rachid v. Jack in the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004).
This is the “mixed-motives” alternative. This alternative, however, was not raised below and
is not at issue in this appeal.

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fabrication or otherwise did not actually motivate the employment action. Even
assuming    this   is     true,   Martin   fails   to   rebut   Waring’s   legitimate,
nondiscriminatory reason with evidence that his termination was related to his
race, sex, or age. See Rachid, 376 F.3d at 312. Demonstrating a “pretext”
without providing evidence that Martin’s suspension and termination were
related to his race, sex, or age does not allow Martin to clear the hurdles
necessary to rebut Waring’s legitimate, nondiscriminatory reason within Title VII
and the ADEA.
      Instead, Martin points to other similarly situated employees who were not
terminated for cash shortages and who are not members of Martin’s race or sex
and who are not protected by the ADEA. The district court properly considered
this evidence when it determined that Martin successfully demonstrated a prima
facie case of discrimination. Information regarding these employees, however,
is not relevant to whether he has provided evidence that Waring’s legitimate,
nondiscriminatory reason for terminating Martin is pretext. Martin offers no
evidence to rebut Waring’s legitimate, nondiscriminatory reason.              Martin
provides only conclusory allegations and unsubstantiated assertions, which are
not sufficient to defeat a motion for summary judgment. See Turner, 476 F.3d at
343 (citation omitted). Thus, we AFFIRM the district court’s grant of Waring’s
motion for summary judgement.
B. Supplemental Jurisdiction
      This Court reviews a district court’s refusal to exercise supplemental
jurisdiction under 28 U.S.C. § 1367 for abuse of discretion.           See Welch v.
Thompson, 20 F.3d 636, 646 (5th Cir. 1994). Under § 1367, a district court may
“entertain state law claims pursuant to its ‘supplemental jurisdiction,’ provided
the claims arise from the case or controversy over which the district court had
original jurisdiction.”    Welch, 20 F.3d at 646.       When all federal claims are
dismissed from the case or controversy before the district court, however, §
1367(c)(3) permits the district court to exercise “wide discretion in determining

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whether to retain jurisdiction over the remaining state law claims.” Welch, 20
F.3d at 646. We hold that the district court did not abuse its discretion in
dismissing Martin’s state law claims without prejudice after dismissing all of
Martin’s federal claims. The district court was within its discretion in refusing
to exercise supplemental jurisdiction over Martin’s state law claims.        We
AFFIRM.
                              III. CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED




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