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

                                                                            FILED
                                                                           June 19, 2008

                                     No. 07-60850                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ERIC DILWORTH

                                                  Plaintiff - Appellant
v.

CONTINENTAL CONSTRUCTION COMPANY INC

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:05-CV-338


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Eric Dilworth brought suit against his former employer, Continental
Construction Company, Inc. (“Continental”), alleging discrimination on the basis
of race in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C.
§ 1981. The case was tried to a jury, which returned a verdict in favor of
Continental.     The district court entered a take-nothing judgment against
Dilworth, who now appeals. For the reasons that follow, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60850

                                     I. Background
       Continental hired Dilworth in June 2005 as a general laborer at a
construction site in Iuka, Mississippi. Dilworth, who was one of about a dozen
general laborers at the Iuka site, assisted the skilled workers (such as
carpenters and ironworkers) and performed various other tasks as needed. On
the Friday of Dilworth’s first week on the job, he was called into the
superintendent’s office and fired.
       The reasons for the firing were disputed. Continental averred that it was
the company’s practice to watch a new hire for the first few days to ensure that
he was competent, and that in accordance with this practice, Continental’s
foreman and superintendent at the Iuka site observed Dilworth during the
course of his first week on the job and came to the conclusion that his work ethic
was not adequate and that he was failing to perform his duties. For example,
Continental claimed that on several occasions, Dilworth was supposed to be fine
grading an area to allow for the carpenters to build forms for pouring a concrete
slab, but stood around watching and not working, which required the carpenters
to perform the task themselves.1
       Dilworth, on the other hand, claimed that the firing was motivated by his
race (Dilworth is black). According to Dilworth, he was one of the laborers who
actually was working during the periods in question, while several other white
laborers were standing around and not working, and yet Dilworth was the only
one who was fired.
       A few weeks after he was fired, Dilworth filed a charge of discrimination
against Continental with the Equal Employment Opportunity Commission
(“EEOC”), claiming that Continental had discriminated against him on the basis
of his race. The EEOC dismissed Dilworth’s charge and issued him a right-to-


       1
        Fine grading is generally laborer’s work, not carpenter’s. At the Iuka site it involved
spreading and leveling gravel so that a concrete slab of uniform thickness could be poured.

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sue letter. Dilworth subsequently filed suit against Continental in the United
States District Court for the Northern District of Mississippi. In his complaint,
Dilworth alleged that he was fired because of his race, in violation of Title VII
of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981. Continental
moved for summary judgment, but its motion was denied by the district court,
which found that a genuine issue of material fact existed concerning
Continental’s reasons for firing Dilworth. The case was then tried to a jury on
June 4–5, 2007. During the trial, conflicting evidence was presented regarding
the circumstances surrounding, and the reasons for, Dilworth’s firing. The jury
ultimately returned a verdict in favor of Continental, and the district court
entered a take-nothing judgment against Dilworth. A timely notice of appeal
was filed by Dilworth.
                                 II. Discussion
      Claims of racial discrimination brought under Title VII or § 1981 are
considered “under the same rubric of analysis.” Raggs v. Miss. Power & Light
Co., 278 F.3d 463, 468 (5th Cir. 2002) (citations omitted). Under the familiar
McDonnell Douglas burden-shifting framework, the plaintiff must first establish
a prima facie case of discrimination by demonstrating that he was: “(1) a
member of a protected class; (2) qualified for the position held; (3) subject to an
adverse employment action; and (4) treated differently from others similarly
situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005)
(citing Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001)). The burden then
shifts to the defendant to proffer a legitimate, non-discriminatory reason for the
action. Id. (citing Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003)). If the
defendant satisfies its burden, the burden shifts back to the plaintiff to show
that the proffered reason or reasons are pretextual. Id. (citing Frank, 347 F.3d
at 137). “Although the evidentiary burdens shift between the parties in this
framework, ‘[t]he ultimate burden of persuading the trier of fact that the

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defendant intentionally discriminated against the plaintiff remains a[t] all times
with the plaintiff.’”   Raggs, 278 F.3d at 468 (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Finally, when a full trial on
the merits has been conducted, as is the case here, our focus is not on the
plaintiff’s prima facie case or the McDonnell Douglas framework, but on the
ultimate question whether the record contains sufficient evidence to support the
jury’s finding of race discrimination or no race discrimination. See id.
      Continental first argues that Dilworth, in his appellate brief, has not
presented a clear statement of the issues or alleged any error committed by the
district court, and that his appeal should therefore be dismissed for failure to
comply with Fifth Circuit Rule 28. We disagree. Dilworth, though represented
by counsel in the district court, is proceeding pro se on appeal. “Briefs by pro se
litigants are afforded liberal construction, though even pro se litigants must
brief arguments to preserve them.” Johnson v. Quarterman, 479 F.3d 358, 359
(5th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Yohey v.
Collings, 985 F.2d 222, 224–25 (5th Cir. 1993)). While Dilworth’s brief is
perhaps not as clear as it could be, we understand it to advance a challenge to
the sufficiency of the evidence supporting the jury’s verdict against him.
Specifically, the “Summary of the Argument” section of Dilworth’s brief discusses
issues relating to the evidence at trial of Dilworth’s performance of his work
duties vis-à-vis the performance of other laborers, as well as the testimony of a
Continental employee who described the circumstances of Dilworth’s
employment and firing. These issues are relevant to an issue of material fact
that was identified by the district court in its denial of Continental’s summary
judgment motion and that was a disputed issue at trial—whether Continental’s
reason for firing Dilworth was merely a pretext for racial discrimination.
      We will therefore proceed to the merits of Dilworth’s appeal. Before we do
so, though, we must determine the proper standard of review. “Challenges to

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the sufficiency of the evidence must be raised in a [Federal Rule of Civil
Procedure 50(a)] motion for judgment as a matter of law before submission of the
case to the jury.” United States for the Use of Wallace v. Flintco Inc., 143 F.3d
955, 960 (5th Cir. 1998). Continental asserts that Dilworth failed to file such a
motion at trial on the issue of the sufficiency of the evidence, and that, having
failed to preserve this issue for appeal, the appropriate standard of review is
plain error. We have reviewed the record and confirmed that Dilworth indeed
failed to move for judgment as a matter of law on the issue of the sufficiency of
the evidence before the case was submitted to the jury. We must therefore
consider Dilworth’s current challenge to the sufficiency of the evidence under the
plain error standard, where reversal is proper “only if the judgment complained
of results in a ‘manifest miscarriage of justice.’” Id. at 963–64 (quoting McCann
v. Tex. City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993)). “On plain error
review ‘the question before this Court is not whether there was substantial
evidence to support the jury verdict, but whether there was any evidence to
support the jury verdict.’” Id. at 964 (quoting McCann, 984 F.2d at 673)
(emphasis in original). “If any evidence supports the jury verdict, the verdict
will be upheld.” Id. (citing Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.
1996)) (emphasis in original).
      After hearing the evidence presented during the two days of trial, and then
receiving an instruction from the district court regarding Dilworth’s burden of
proof, the jury determined that Continental had not discriminated against
Dilworth on the basis of race. Our review of the record convinces us that there
was evidence in support of this determination. The main issue in dispute at trial
concerned whether Continental’s proffered reason for firing Dilworth—that his
work effort was not adequate and that he was failing to perform his job
duties—was a pretext for race discrimination.        Continental presented the
testimony of the foreman and superintendent at the Iuka job site, who testified

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to: (1) Continental’s practice of observing new hires to determine if they are
competent; (2) their own observations of Dilworth’s performance of his job duties;
(3) Dilworth’s job performance compared to the performance of other laborers;
and (4) the reasons for the decision to fire Dilworth.             For example,
superintendent Wayne Ross explained Continental’s practice of observing and
evaluating new hires and related his own observations of Dilworth:
      Ross:       Well, when [job applicants] come in, we just ask them, you
      know, if they’ve been in construction work before. And if they have, we
      ask them what they did, how long they were in it. That’s pretty much it.
      We don’t take an application or anything like that. . . .

      Counsel:     But you give them a shot to see if they can do what they’re
      telling you they can do?

      Ross:       Yes, ma’am.

      Counsel:    And after you give them this opportunity to work, what do you
      do?

      Ross:       Well, we observe them. * * * The next couple of days [after the
      applicant is hired] is when you really start, you know, taking a look at
      them to see. Because in this period of time, they’re adjusting. They’re
      beginning to fall in with the rest of the people and get the work done.

      Counsel:    And what did you notice about Mr. Dilworth during those next
      couple of days?

      Ross:       Well, the second day . . . . I noticed that he was -- he just
      didn’t seem like he had a lot of enthusiasm. He didn’t really seem like he
      was getting into the work with the experience that he said he had.
            And the third day, I -- in my rounds, I noticed that he was just
      standing looking while the other people were working . . . .
      ***

      Counsel:    Was he getting the job done?

      Ross:      Well, he was working with the rest of them, but he wasn’t
      doing what they were doing.


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Counsel:      Was he pulling his share of the weight on the crew?

Ross:         No, ma’am.

Similarly, foreman Thomas Sullivan testified as follows:
Sullivan: Well, the first couple of days, you know, I noticed he was
working; but he wasn’t working real good.

Counsel:      What do you mean by that?

Sullivan: He didn’t show a lot of interest in his work. * * * He was going
through the motions; but he really wasn’t, you know, putting his heart into
his work.

        The testimony of Ross and Sullivan, which offers a legitimate, non-
discriminatory reason for Dilworth’s firing, provides an evidentiary basis
for the jury’s determination that Continental did not discriminate against
Dilworth. Therefore, under the plain error standard, we must affirm the
district’s court judgment entered in accordance with the jury’s verdict.
                             III. Conclusion
        For the foregoing reasons, the judgment of the district court is
AFFIRMED. All pending motions are DENIED.




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