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

                                                               FILED
                                                            November 15, 2007
                               No. 07-60503
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

TERRY LEE TAYLOR

                                         Plaintiff-Appellant

v.

COOPER TIRE AND RUBBER COMPANY

                                         Defendant-Appellee


                 Appeal from the United States District Court
              for the Northern District of Mississippi, Aberdeen

                           USDC No. 1:05-CV-250


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
     Terry Lee Taylor worked at Cooper Tire and Rubber Company (“the
company”) from September 28, 1988 through April 6, 2005, when the company
fired him for hitting another employee with a tire. After the tire incident,
foremen questioned Taylor about the skirmish and managers later met with
Taylor to formally discuss it. On April 6, the company informed him by letter
that he had been fired and allowed him to request a peer review hearing, which


     *
      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should not be published and is not precedent except under the limited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.
the company held on April 21. Taylor did not indicate during any of these
discussions or meetings that the other employee involved in the skirmish had
first hit him with a tire. He later testified that he did not reveal this information
because he was afraid of being fired.
       In 2004, the company transferred Taylor from his position in the rubber
mixing department and from his brief service as a second stage tire builder to
a “green tire handler job” after issuing multiple oral and written warnings to
Taylor. He did not ever receive any bonuses in his tire sorter position.
      Taylor alleges that the company fired him because of his union activity
and in retaliation for his hitting a Caucasian employee with a tire. He filed a
claim with the National Labor Relations Board, similarly arguing that the
termination resulted from his union activity, and the NLRB concluded that the
company validly fired Taylor on the basis of the tire incident. Taylor did not
appeal this decision with the NLRB.           He then brought claims of race
discrimination and retaliation under Title VII of the Civil Rights Act of 1964 in
district court. The district court granted the company’s motion for summary
judgment.
      We review a district court’s grant or denial of a motion for summary
judgment de novo and find summary judgment “appropriate if the record shows
that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.”1 To establish a retaliation claim under
Title VII, Taylor had to show “(1) that he engaged in activity protected by Title
VII; (2) [defendant] took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the adverse
employment action.”2 To establish employment discrimination under Title VII,
the district court properly recognized that, absent evidence of direct


      1
       EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690, 694 (5th Cir. 2007)
(quotations omitted).
      2
        Jones v. Robinson Prop. Group, L.P., 427 F.3d 987, 995 (5th Cir. 2005)
(citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997)).

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discrimination, the plaintiff may present circumstantial evidence3 but must
under the McConnell Douglas scheme4 “first prove a prima facie case of
discrimination,”5 after which the burden shifts to the defendant to prove that
defendant had a non-discriminatory reason for firing the plaintiff.
      The district court determined that the company did not dispute Taylor’s
prima facie case for discrimination but that the reasons that it provided for
Taylor’s transfer and termination were not a pretextual cover for discriminatory
motive. We agree with the unchallenged findings that the company’s refusal to
give Taylor a bonus resulted from his failure to take a proficiency test required
for that bonus; that its transfer of Taylor resulted from numerous warnings
unrelated to race; and that it terminated Taylor because actions such as
throwing tires create a dangerous workplace. Taylor admitted in his deposition
that the company transferred him from his job of second stage tire builder to tire
sorter because he was “disqualified” and did not meet the minimum
requirements for that job. He also indicated that he “kinda caught wind” of the
fact that he had to take a proficiency test in order to receive a bonus, and agreed
that the termination letter indicated that the company discharged Taylor for
throwing another tire at another employee in an “intentional and dangerous
act.” We agree with the district court’s finding that Taylor’s response to the
company’s motion for summary judgment failed to show that the company’s
reasons were pretextual or involved mixed discriminatory and legitimate
motives. Finally, we find no disputed material fact in the case below indicating
the causal connection between Taylor’s transfer and termination and his union
activity or race.
      AFFIRMED.




      3
          See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003).
      4
          McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).
      5
          Evans v. Houston, 246 F.3d 344, 350 (5th Cir. 2001).

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