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

                                                  FILED
                                                                            April 16, 2009

                                       No. 08-60448                    Charles R. Fulbruge III
                                                                               Clerk

HAL A. MERRITT,

                                                   Plaintiff–Appellant,
v.

UNITED PARCEL SERVICE, INC.,

                                                   Defendant–Appellee.




                     Appeal from the United States District Court
                       for the Southern District of Mississippi
                               USDC No. 1:06-CV-1072


Before GARWOOD, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Hal Merritt appeals the district court’s grant of summary judgment in
favor of United Parcel Service, Inc. (UPS) denying Merritt’s claims under Title
VII of the Civil Rights Act of 1964 1 and 42 U.S.C. § 1981. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           42 U.S.C. § 2000e et seq.
                                  No. 08-60448

                                        I
      Merritt, a forty-seven-year-old African-American, was terminated by UPS
after twenty-seven years of employment for allegedly falsifying documents.
Merritt admits that he instructed drivers to adjust the deadlines for packages
that were not timely delivered to appear as if the deadline for delivery was
sometime in the future. His separation form indicates that the reason for
termination was “VIO—Violation of Rules or Company Policy.” The description
of the reason for separation further states:
      Records Falsification (Changed Missed Pieces in PTE);
      Instructed Service Providers to record missed/send again packages
      as “Futures”;
      Instructed Service Provider to record late NDA package as
      “requested late.”
      After his termination, Merritt filed a formal charge of discrimination with
the   Equal    Employment      Opportunity     Commission     (EEOC)     alleging
discrimination based on race and age. The EEOC determined that evidence
obtained in its investigation established reasonable cause to believe that Merritt
was discharged because of his race but that the evidence did not establish
reasonable cause to believe that he was discharged because of his age. Merritt
then filed a complaint in the district court seeking damages for employment
discrimination on the basis of race and age, pursuant to Title VII and § 1981.
      After the completion of discovery, UPS filed a motion for summary
judgment. UPS also filed a motion to strike Merritt’s “Statements of Drivers”
that was attached to Merritt’s response in opposition to UPS’s motion for
summary judgment. The district court granted UPS’s motions to strike and for
summary judgment and dismissed Merritt’s claims with prejudice. Merritt
timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.




                                        2
                                         No. 08-60448

                                                II
      We review the district court’s grant of summary judgment de novo.2
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.”3 “Any reasonable inferences are to be drawn in favor of the non-moving
party.” 4 “However, a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” 5 “Rule
56(e) . . . requires the nonmoving party to go beyond the pleadings and by her
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions
on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” 6
                                                A
      Merritt argues that the district court erred in dismissing his claim that he
suffered a hostile work environment based upon his race. Merritt first raised
this claim in his response to UPS’s motion for summary judgment.
      A court may entertain a Title VII claim only if the aggrieved party has
exhausted his or her administrative remedies.7 Merritt did not file a charge of
discrimination with the EEOC based on an allegedly hostile work environment.
Additionally, the statement from a co-worker and handwritten notes—Merritt’s
only proffered evidence in support of his hostile work environment claim—were



      2
          James v. Tex. Collin County, 535 F.3d 365, 373 (5th Cir. 2008).
      3
       F   ED .   R. CIV . P. 56(c).
      4
          Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 366 (5th Cir. 2007).
      5
        Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
      6
          Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED . R. CIV . P. 56(e)(2)).
      7
          Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002).

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                                           No. 08-60448

made at least three years before the filing of his EEOC charge for violations of
Title VII, long after the statutory period for filing a charge. 8 Because Merritt
failed to exhaust his administrative remedies, his hostile work environment
claim was properly dismissed.
                                                 B
       Merritt next argues that he was terminated because of his race in violation
of Title VII and § 1981.              Claims of racial discrimination based only on
circumstantial evidence are evaluated under the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green.9 A plaintiff must first establish a
prima facie case of discrimination by showing he: (1) belongs to a protected
group; (2) was qualified for the position; (3) suffered an adverse employment
action; and (4) was replaced by someone outside the protected class or that other
similarly situated employees outside the protected class were treated more
favorably.10
       Merritt has not provided sufficient evidence to establish a prima facie case
of discrimination under Title VII. It is undisputed that Merritt belongs to a
protected group and that he suffered an adverse employment action. While the
parties disagree as to whether Merritt was qualified, we do not reach this
question because Merritt fails to satisfy the fourth element.




       8
         See 42 U.S.C. § 2000e-5(e)(1) (“A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employment practice occurred . . . .”); cf.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“It does not matter, for
purposes of the statute, that some of the component acts of the hostile work environment fall
outside the statutory time period. Provided that an act contributing to the claim occurs within
the filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.”).
       9
           411 U.S. 792, 802-805 (1973).
       10
            Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).


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                                       No. 08-60448

       Merritt does not argue that his job was filled by someone outside the
protected class. Instead, Merritt contends that two Caucasian employees, Steve
Beattie and Donna Chennault, were similarly situated and treated more
favorably. “[T]o establish disparate treatment a plaintiff must show that the
employer gave preferential treatment to another employee under nearly
identical circumstances; that is, that the misconduct for which the plaintiff was
discharged was nearly identical to that engaged in by other employees.”11
       We note that Merritt first identified Beattie and Chennault as
comparators in his response to UPS’s motion for summary judgment. Before
that time, in his response to discovery requests and during his deposition,
Merritt identified Rusty Crabtree and Leroy “Buddy” Smith as the similarly
situated employees. We need not decide whether Merritt’s identification of
Beattie and Chennault for the first time after discovery is proper because
Beattie and Chennault are not similarly situated.
       Beattie and Chennault were not in the same position as Merritt and were
not accused of committing the same infraction. Beattie was Merritt’s supervisor
and UPS attributed some responsibility for Merritt’s falsification of documents
to Beattie because, as the Center Manager, Beattie “should have been aware of
the issues and problems in the center.”              Beattie was suspended but not
terminated. Discipline for failure to supervise adequately is not comparable to
discipline for knowingly falsifying documents. Nor was Chennault disciplined
for falsifying documents. Chennault was issued a written warning because
several drivers had told her about Merritt’s wrongful actions but she did not
notify her manager.



       11
          Id. at 514 (alterations and internal quotation marks omitted); see Berquist v. Wash.
Mut. Bank, 500 F.3d 344, 353 (5th Cir. 2007) (“In disparate treatment cases, the
plaintiff-employee must show ‘nearly identical’ circumstances for employees to be considered
similarly situated.”).

                                              5
                                         No. 08-60448

       Merritt relies on the EEOC’s Determination (Determination) that “two
white employees were accused of committing the same infraction and were
allowed to continue their employment.” But neither Merritt’s formal charge of
discrimination, nor the Determination identifies the white comparators.
Because the Determination contains only a broad conclusion, does not outline
the nature of the investigation conducted, and does not cite evidence in support,
the Determination does not create a material question of fact to defeat summary
judgment.12
       Merritt contends that the district court erred when it struck statements
from several drivers who claim that Merritt did nothing wrong or unethical.
Merritt has failed to brief this issue adequately, and thus we will not consider
it on appeal.13
       Because Merritt fails to present evidence that creates a genuine issue of
material fact that other similarly situated employees were treated more
favorably, Merritt’s Title VII claim fails.14
                                                C
       Merritt also contends that the district court erred in granting summary
judgment on his age discrimination claim.                      Merritt brought his age


       12
          See Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997)
(“Unsupported allegations or affidavit or deposition testimony setting forth ultimate or
conclusory facts and conclusions of law are insufficient to defeat a motion for summary
judgment.”); see also Septimus v. Univ. of Houston, 399 F.3d 601, 610 (5th Cir. 2005) (holding
that summary judgment was appropriate when the plaintiff failed to set forth sufficient
evidence of pretext, despite the EEOC’s finding of reasonable cause of gender discrimination).
       13
            See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
       14
          See Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 641 n.9 (5th Cir.
1985) (“In the employment discrimination context, a prima facie case is established if the
plaintiff merely satisfies the standing requirements of the ADEA and presents evidence of
differential treatment of younger and older employees. Given these minimal requirements,
the failure to establish a prima facie case generally means that there are no material facts at
issue.”), overruled on other grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993).

                                                6
                                             No. 08-60448

discrimination claim pursuant to Title VII and § 1981.                     The district court
dismissed Merritt’s claim on the ground that he did not assert a violation of the
Age Discrimination in Employment Act15 (ADEA). Because we can affirm on any
grounds raised below, we do not decide whether Merritt’s failure to assert a
violation of the ADEA renders his claim invalid. Instead, we conclude that
Merritt fails to provide sufficient evidence to establish a prima facie case of age
discrimination under the ADEA.
        “To make out a prima facie case of discriminatory treatment based on age,
the plaintiffs are required to prove: (1) they are within the protected class;
(2) they are qualified for the position; (3) they suffered an adverse employment
decision; and (4) they were replaced by someone younger or treated less
favorably than similarly situated younger employees (i.e., suffered from
disparate treatment because of membership in the protected class).” 16 Merritt
fails to satisfy the fourth element.
        Merritt does not allege that he was replaced by someone outside of the
protected class. Thus, we need only determine whether Merritt was treated less
favorably than similarly situated younger employees. Merritt supports his claim
with conclusory assertions that he was terminated because he was seven years
from retirement and that Beattie and Chennault were “younger workers.”
Because we have concluded that Beattie and Chennault were not similarly
situated, Merritt does not establish a prima facie case of age discrimination.
Accordingly, Merritt’s claims of age discrimination under Title VII and § 1981
fail.
                                         *        *         *
        AFFIRMED.


        15
             29 U.S.C. § 621 et seq.
        16
             Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003).

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