                   United States Court of Appeals,

                             Fifth Circuit.

                              No. 96-50419

                            Summary Calendar.

          Amador NIETO, Plaintiff-Appellant-Cross-Appellee,

                                     v.

  L&H PACKING CO.;    Surlean Meat Company, Defendants-Appellees-
Cross-Appellants.

                             March 28, 1997.

Appeals from the United States District Court for the Western
District of Texas.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

     BENAVIDES, Circuit Judge:

     In   this   national   origin   discrimination    case,   Plaintiff-

Appellant Amador Nieto appeals the district court's grant of

summary judgment in favor of his former employer, L & H Packing

Company and Surlean Meat Company (collectively "Surlean"). Because

the competent summary judgment evidence before the district court

did not raise a material fact issue that national origin was a

motivating reason for Nieto's termination, the judgment of the

district court is AFFIRMED.

                        I. Standard of Review

      This court reviews the district court's grant of summary

judgment de novo.     See, e.g., Ray v. Tandem Computers, Inc., 63

F.3d 429, 433 (5th Cir.1995).     "Summary judgment is proper when no

issue of material fact exists and the moving party is entitled to

judgment as a matter of law.              In determining whether summary


                                     1
judgment was proper, all fact questions are viewed in the light

most favorable to the non-movant."   Id. (quoting Moore v. Eli Lilly

Co., 990 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 976, 114

S.Ct. 467, 126 L.Ed.2d 419 (1993) (citation omitted)).

                          II. Background

     In August 1992, Surlean was in the market to hire some

supervisory personnel.    Larry Lewis, Nieto's supervisor at a

previous job and Surlean's night plant superintendent, suggested

that Surlean's personnel department contact Nieto about one of its

openings.   Lewis discussed the possibility of hiring Nieto with

Surlean's   personnel    director,    and   pursuant   to   Lewis's

recommendation, Nieto was promptly hired to fill the position of

night production supervisor.

     During the course of his employment, Nieto received two

written warning notices for his inadequate performance, one of

which resulted in a three-day suspension.1     In addition, during

Nieto's shift on December 7, 1993, a light bulb broke, sending

slivers of glass into 300-500 pounds of meat that was being

processed. Nieto failed to follow direct instructions to label the

container of contaminated meat "inedible."2      Because inadequate


     1
      Surlean claims that Nieto's file reflects four performance
deficiencies that resulted in written warning notices.     Nieto,
however, contends that two of these alleged incidents did not
occur. Viewing the evidence in the light most favorable to Nieto,
we will disregard the two disputed warnings for purposes of
reviewing the propriety of summary judgment in Surlean's favor.
     2
      It is undisputed that both Larry Lewis and Jim Caillouet,
Surlean's quality control supervisor, told Nieto to label the
contaminated meat as inedible and that Nieto did not do so.

                                 2
steps were taken to isolate the adulterated meat, this meat was

mixed with 20,000 pounds of good meat, which had to be destroyed at

a cost of approximately $20,000 to Surlean.

       In light of the December 7 incident and Nieto's overall

employment record, Lewis recommended that Nieto be terminated.3

Because Lewis was not on duty at the time, Cliff Miller conducted

Nieto's exit interview.         Miller told Nieto only that he was being

terminated because his failure to follow instructions cost Surlean

$20,000.

       Jim Caillouet, Surlean's quality control supervisor, was also

subjected to discipline arising out of the December 7 incident.

Although Caillouet properly instructed a quality control employee

to put a "hold tag" on the contaminated meat, he did not check to

make       sure   that   his   subordinate   properly   tagged   the   meat.4

Caillouet was issued a first notice written warning for this

incident, his first performance deficiency of any kind.

       On November 16, 1994, Nieto filed the instant action in

federal district court alleging that he was terminated because of

his national origin in violation of Title VII of the Civil Rights


       3
      Surlean claims that Lewis's recommendation was subject only
to routine review and approval by its personnel department.
Furthermore, Lewis testified by affidavit that he considered
whether a suspension or other disciplinary action would have been
appropriate under the circumstances. Based upon Nieto's entire
employment record, including prior discipline, however, Lewis
concluded that Nieto should be terminated.     Nieto has offered
nothing to contradict this evidence.
       4
     It appears from the summary judgment record that the quality
control employee who disregarded Caillouet's instructions was also
terminated.

                                       3
Act of 1964, as amended.     42 U.S.C. § 2000e et seq.      On July 7,

1995, Surlean filed its motion for summary judgment, which was

dismissed without prejudice in order to allow the completion of

discovery and continuation of mediation.        On October 24, 1995,

Surlean re-urged its motion for summary judgment and filed a

supplemental appendix based upon additional discovery.          On March

28, 1996, the district court granted Surlean's motion for summary

judgment and entered an order dismissing Nieto's claims.

     On April 8, 1996, Nieto filed a motion for reconsideration of

the district court's grant of summary judgment in favor of Surlean.

On April 17, 1996, Surlean moved to strike an untimely affidavit

filed by Nieto and moved for an award of sanctions against Nieto

and his counsel.       The district court entered an order denying

Nieto's motion   for    reconsideration,   striking   Nieto's   untimely

affidavit, and denying Surlean's request for sanctions.            Nieto

timely filed notice of appeal from the district court's failure to

reconsider its decision to grant summary judgment in favor of

Surlean;   Surlean timely filed notice of appeal regarding the

district court's failure to assess sanctions and attorney's fees

against Nieto and his counsel.    This appeal followed.

                            III. Discussion

      Nieto, a Hispanic male, contends that he was unlawfully

terminated on the basis of national origin in violation of Title

VII. Nieto argues that Surlean's discriminatory intent is evidenced

by the fact that he was terminated for his role in the December 7

incident, while Jim Caillouet, a similarly-situated Anglo, was


                                   4
treated in a more lenient fashion.         Because the competent summary

judgment evidence viewed in the light most favorable to Nieto does

not   support    his    contention       that    he    and   Caillouet    were

similarly-situated employees and because the evidence does not

otherwise create an issue of fact that Nieto's termination was

motivated by his national origin, the district court properly

granted summary judgment in favor of Surlean.5

      The   summary    judgment   evidence      does   not   support   Nieto's

contention that he and Caillouet were similarly-situated employees.

First, it is undisputed that two different supervisory employees

told Nieto to put an "inedible" label on the contaminated meat and

that he did not do so.            In contrast, it is undisputed that

Caillouet did not disobey a direct instruction from his supervisor.

Moreover, while Nieto had a prior disciplinary record, which

       5
       Prior case law has not consistently applied Title VII's
burden-shifting   framework   to   the   question  of   whether   a
similarly-situated employee outside the plaintiff's protected class
was treated more favorably. The Supreme Court has explained that
this inquiry is especially relevant to a showing that the
employer's proffered legitimate, non-discriminatory reason for its
decision was pretext for discrimination. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d
668 (1973). Accord Little v. Republic Refining Co., Ltd., 924 F.2d
93, 97 (5th Cir.1991). On the other hand, our court has held that
such a showing may be an available avenue by which a plaintiff can
establish a prima facie case of discrimination. See Johnson v.
Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir.1988);
Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert.
denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980).
Because strict application of the burden-shifting framework is not
particularly helpful to our analysis of this case, we proceed
directly to the ultimate question of whether Nieto has established
a fact issue that national origin was a motivating factor in his
termination. See generally Deborah C. Malamud, The Last Minuet:
Disparate Treatment After Hicks, 93 MICH. L. REV. 2229 (1995).
Therefore, we need not reconcile the apparent confusion in the case
law on this issue.

                                     5
included at least two written warnings and a three-day suspension,

it is undisputed that Caillouet had no prior disciplinary record.

Under these circumstances, Surlean's decisions to provide Caillouet

with a written warning and to terminate Nieto do not raise a

material question of fact that Nieto's termination was motivated by

discriminatory animus.

      Not only did Nieto fail to provide evidence that would allow

a fact finder to infer that Surlean's decision was motivated by his

national origin, but the record evidence provides substantial

support to the contrary.   For starters, eighty-eight percent of

Surlean's work force is comprised of minorities.6    Second, it is

undisputed that the employee who was promoted to replace Nieto as

night production supervisor was also Hispanic.   While not outcome

determinative,7 this fact is certainly material to the question of

     6
      See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 580, 98
S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978) ("[T]he District Court was
entitled to consider the racial mix of the work force when trying
to make the determination as to motivation"). The 88% figure was
based on Surlean's most recent reporting period under its
affirmative action program.     The figure included new hires,
seventy-two percent of whom were Hispanic, as well as recently
promoted employees, ninety-three percent of whom were Hispanic.
      7
       The district court held that Nieto failed to establish a
prima facie case of discrimination because the plaintiff's position
was immediately filled by a member of the same protected class.
The Supreme Court "has not directly addressed the question whether
the personal characteristics of someone chosen to replace a Title
VII plaintiff are material...." St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 527 n. 1, 113 S.Ct. 2742, 2758 n. 1, 125 L.Ed.2d 407
(1993) (Souter, J., dissenting). Cf. O'Connor v. Consolidated Coin
Caterers Corp., --- U.S. ----, ----, 116 S.Ct. 1307, 1310, 134
L.Ed.2d 433 (1996) ("The fact that one person in the protected
class has lost out to another person in the protected class is ...
irrelevant, so long as he has lost out because of his age").
Recent cases in our circuit support the district court's view that
a plaintiff's replacement by a member of the same protected class

                                6
discriminatory intent.   See, e.g., Cumpiano v. Banco Santander

Puerto Rico, 902 F.2d 148, 155 (1st Cir.1990).        Moreover, the

supervisor who recommended that Surlean hire Nieto was the same

supervisory employee who issued the authoritative recommendation to

terminate Nieto's employment.    This court has previously held that

this situation gives rise to an inference of non-discrimination

because it is unlikely that a decision maker "would hire workers

from a group one dislikes (thereby incurring the psychological

costs of associating with them), only to fire them once they are on

the job."    Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th

Cir.1996) (quoting Proud v. Stone, 945 F.2d 796, 797 (4th Cir.1991)

(internal citation omitted)).8    Finally, in his deposition, Nieto


precludes the establishment of a prima facie case. See Singh v.
Shoney's Inc., 64 F.3d 217, 219 (5th Cir.1995); Allison v. Gulf
Employees Credit Union, 836 F.Supp. 395, 397 (E.D.Tex.1993), aff'd
mem., 32 F.3d 565 (5th Cir.1994).       These recent cases ignore
earlier precedent in this circuit, however, which explicitly
recognized "that the single fact that a plaintiff is replaced by
someone within the protected class does not negate the possibility
that the discharge was motivated [by] discriminatory reasons."
Hornsby v. Conoco, Inc., 777 F.2d 243, 246-47 (5th Cir.1985)
(citing Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th
Cir.1982)). It bears noting that our earlier precedent on this
point continues to be controlling law in this circuit.       United
States v. Gray, 751 F.2d 733, 735 (5th Cir.1985). While the fact
that one's replacement is of another national origin "may help to
raise an inference of discrimination, it is neither a sufficient
nor a necessary condition." Carson v. Bethlehem Steel Corp., 82
F.3d 157, 159 (7th Cir.1996).     To the extent that the district
court concluded otherwise, such conclusion was not supported by the
controlling authority in this circuit.
     8
      But see Waldron v. SL Industries, Inc., 56 F.3d 491, 496 n.
6 (3rd Cir.1995) (agreeing with the position expressed by the Equal
Employment Opportunity Commission as amicus curie: "[W]here, as in
Proud, the hirer and firer are the same and the discharge occurred
soon after the plaintiff was hired, the defendant may of course
argue to the factfinder that it should not find discrimination.
But this is simply evidence like any other and should not be

                                  7
claimed that he believed that Surlean was "out to get him" because

he was successful at "what he was doing."   Even if this accusation

is true, it has long been the law in this circuit that "Title VII

... do[es] not protect against unfair business decisions[,] only

against decisions motivated by unlawful animus."   Turner v. Texas

Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir.1977), overruled on

other grounds by Burdine v. Texas Dept. of Community Affairs, 647

F.2d 513 (5th Cir.1981).    Because Nieto has failed to present

competent summary judgment evidence that his national origin was a

motivating factor in Surlean's decision to terminate him, he has

not raised a genuine issue of material fact sufficient to withstand

summary judgment.9

     We have also considered Nieto's other points of error and have

determined that they are without merit.       The judgment of the

district court is, accordingly, AFFIRMED.




accorded any presumptive value.").
      9
       Surlean cross-appeals and argues that the district court
abused its discretion in denying Surlean's request for attorney's
fees and sanctions based on the frivolity of Nieto's claim. We
conclude that the district court did not abuse its discretion in
this regard and note that while Nieto presented relatively weak
evidence of discrimination, the law supporting a number of
Surlean's arguments is both in flux and not as unquestionably in
its favor as Surlean suggests. See notes 5, 7-8, and accompanying
text. For the same reasons, we decline to exercise our discretion
to sanction Nieto for prosecuting a frivolous appeal.

                                8
