     Case: 11-50116    Document: 00511765365         Page: 1    Date Filed: 02/23/2012




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

                                                                          FILED
                                                                       February 23, 2012

                                    No. 11-50116                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



NARENDRA N. PATEL,

                                          Plaintiff - Appellant

v.

TEXAS DEPARTMENT OF TRANSPORTATION,

                                          Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 1:10-CV-00242-SS


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Narendra N. Patel (“Patel”), appearing pro se, appeals the district court’s
grant of summary judgment in favor of the Texas Department of Transportation
(“TxDOT”) on his Title VII racial discrimination and retaliation claims. Because
the district court properly found that Patel failed to establish a prima facie case
for his 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not be published and is not precedent except under the limited circumstances set forth in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.
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      Patel worked as an engineer for TxDOT from June 1996 until his
termination on April 23, 2009. He started as a Transportation Engineer and was
promoted to the TxDOT Design Division in May 2000.
      Patel, who is of Asian descent, Indian national origin, and has an
admittedly “very strong Indian accent,” claims he was subject to discriminatory
treatment beginning in 2003 when he was not given an annual pay increase.
After raising the issue with upper management, the issue was resolved and
Patel received a merit raise in 2004.
      Beginning in late 2005, Patel claims his “employment status began to
change dramatically.” While he had previously received annual performance
evaluations that indicated his work was good and met TxDOT’s standards, Patel
began to receive a series of evaluations that reflected an overall performance
rating of “Needs Improvement” or “Unacceptable,” eventually leading to his
termination in 2009.    Patel claims these evaluations were the result of a
conspiracy between his three supervisors, Tom Beeman, Larry Halterman, and
Mark Marek, who displayed racism and favoritism and purposely attempted to
make Patel’s work environment miserable. He claims the series of below-
standard performance reviews and 90-day improvement plans that he received
from Beeman and Halterman between 2006 and 2009 were unjustified and
fabricated. Many of the negative performance reviews identified issues with
Patel’s communications skills, including: using inappropriate language, failing
to follow proper chain of command, making repeated calls and sending email
messages to various people in the district other than designated project contact
individuals, and causing confusion and additional work by not following proper
communication protocols.
      Patel filed complaints with the Civil Rights Division of TxDOT in 2006 and
2008 complaining of discrimination evidenced by the negative evaluations given

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by Beeman and Halterman. Patel also complained that other employees were
treated differently, noting that Beeman and Halterman stopped by other
employees’ cubicles more often than his, and generally claimed that other non-
Indian coworkers at the same grade level were treated differently.               An
investigation by TxDOT human resources after the 2008 complaint found that
there was no evidence to support Patel’s assertions that Beeman disliked him,
that there was no ongoing conflict between them, and that neither Beeman or
Halterman had threatened Patel or acted unprofessionally towards him. The
investigation also found that Patel’s claims that Beeman and Halterman lied on
his evaluations and that they treated other engineers more favorably were either
not supported or were inconclusive.
      In February 2009, Patel was put on probation after his division received
a complaint about Patel’s unprofessional conduct and poor customer service
skills. Patel disputes this explanation for his probationary status and claims he
was placed on probation in retaliation for his 2008 complaint. The written
probation disciplinary form required Patel to respect the proper communications
channels in the chain of command and abide by the instructions regarding
proper contact persons given by his lead engineer and supervisor. He was also
warned that failure to improve would result in additional discipline, including
termination. Patel was subsequently counseled by his supervisors twice in
March 2009 and again in early April 2009 before being terminated on April 23,
2009. The termination was the result of a complaint emailed by an individual
in a different TxDOT office, alleging that Patel scolded the sender for copying
Halterman on a project-related email and for making unreasonable requests for
the completion of changes in the project documentation. Beeman consulted with
TxDOT’s human resources personnel prior to terminating Patel. Following the
termination, Patel’s position went unfilled until at least October 2010.

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      After he was terminated, Patel filed a discrimination charge with the
EEOC and the Texas Workforce Commission and was issued a right-to-sue
letter. Patel then filed concurrent suits in Texas state court and the federal
district court. The district court denied a motion to stay the proceedings pending
the outcome of the state court proceedings and TxDOT filed a motion for
summary judgment. Finding that Patel failed to present a prima facie case of
discrimination or retaliation, the court granted summary judgment to TxDOT
on all claims.
      Patel appeals, arguing, without support, that the evidence supplied by
TxDOT to the district court in support of its summary judgment motion was
fabricated by Beeman, Halterman, and Marek. Patel also maintains that the
negative performance evaluations were only created to build a paper trail
intended to cover up discriminatory and retaliatory actions.
      “We review the district court’s grant of summary judgment de novo.”
Fahim v. Marriot Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008). Summary
judgment is appropriate only “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.” Id. In determining whether a genuine issue as to any material fact exists,
we view the evidence in the light most favorable to the nonmoving party.
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
      For the following reasons, we affirm the district court’s grant of summary
judgment.
      1. To make out a prima facie case of discrimination, Patel must show that
      he: (1) is a member of a protected group; (2) was qualified for the position
      at issue; (3) was discharged or suffered some adverse employment action
      by the employer; and (4) was treated less favorably than other similarly

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   situated employees outside the protected group. McCoy v. City of
   Shreveport, 492 F.3d 551, 556 (5th Cir. 2007); see also Keelan v. Majesco
   Software, Inc., 407 F.3d 332, 343–44 (5th Cir. 2005). While Patel can
   arguably show that he meets the first three elements, he failed to present
   evidence that he was treated less favorably than similarly situated
   employees. As noted by the district court, Patel failed to identify any non-
   Indian employee whom he considered similarly situated and who received
   more favorable treatment under circumstances nearly identical to his. See
   Keelan, 407 F.3d at 345 (“To establish a prima facie case in this manner,
   [Patel] must show that [non-Indian] employees were treated differently
   under circumstances ‘nearly identical’ to his.”) (quoting Mayberry v.
   Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)). In fact, Patel had
   a long history of disciplinary issues and negative evaluations that set him
   apart from many, if not most or all, of his coworkers. Accordingly, Patel
   has not made out a prima facie case and his discrimination claim lacks
   merit.


   2. To establish a prima facie case of retaliation, Patel must establish that:
   (1) he participated in an activity protected by Title VII; (2) his employer
   took an adverse employment action against him; and (3) a causal
   connection exists between the protected activity and the adverse
   employment action. McCoy, 492 F.3d at 556–57. Patel has failed to show
   any causal connection between his protected activity—the filing of a
   grievance in November 2008—with his termination in April 2009. While
   Patel claims he has demonstrated a causal connection through TxDOT’s
   failure to give him merit raises and the negative reviews he received after
   filing the grievance, this argument is based on a selective view of the

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   record confined to the November to April time frame. When viewed as a
   whole, the record shows that Patel had received a number of negative
   performance reviews beginning as far back as 2005, well before Patel filed
   his grievance. Given this history and without additional evidence, there
   is nothing in the record to construe his termination as a form of
   retaliation. Therefore, the district court’s grant of summary judgment on
   Patel’s retaliation claim was correct.
   AFFIRMED.




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