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

                                                                               FILED
                                                                               May 2, 2008

                                         No. 06-21003                    Charles R. Fulbruge III
                                                                                 Clerk

BILLY RAY TRATREE

                                                     Plaintiff-Appellant
v.

BP NORTH AMERICAN PIPELINES, INC.; KELLY GLEASON

                                                     Defendants-Appellees



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 4:03-CV-954



Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.*
PER CURIAM:**
       Plaintiff-Appellant Billy Ray Tratree (“Tratree”) challenges the dismissal
of his employment discrimination suit against Defendant-Appellee BP North
American Pipelines, Inc. (“BP”) partially by summary judgment and partially by
judgment as a matter of law. For the following reasons, we affirm in part and
vacate and remand in part.


       *
           District Judge of the Western District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-21003

                                        I.
      Tratree started working for Amoco Pipeline Company (“Amoco”), BP’s
predecessor, in 1978. When Amoco and BP merged in 1999, he became an
employee of BP. From 1995 to 2001, Tratree was a “Measurement Specialist I,”
tasked with making sure oil kept moving through the section of pipeline running
from Mexia to Hufsmith, Texas. Tratree’s focus was on the section of pipeline
running from North Zulch, a middle-point on the pipeline where he was based,
to Hufsmith. According to his supervisors and coworkers Tratree was qualified
and did good work.
      Tratree alleged that during his employment at Amoco and BP he was the
victim of race discrimination. Specifically, he claimed that his coworkers used
racial epithets and threatened him, that he was responsible for a larger area of
pipeline than his white coworkers, that he was forced to work overtime more
often than his white coworkers, and that his district manager granted more
training opportunities to whites and consistently fired African-Americans more
often than whites. Tratree alleged that he complained to his supervisors about
this treatment, but they did nothing.
      Tratree also alleged that he was the victim of age discrimination.
Tratree’s district manager testified that in 2001 Lee Edwards, then president of
BP Amoco, remarked at a company meeting that “BP does, in fact, discriminate
against age.”    Also, Tratree presented evidence that a BP personnel
representative indicated that Tratree’s position was eliminated because of
rumors that he was about to retire.
      In 1996, Amoco started a “multi-skilling” program designed to train
employees to perform a wider variety of functions and therefore reduce the size
of the workforce. The “multi-skilling” program created new job classifications.
Under the new classification system, Tratree could have trained to become a
“Field Specialist.” Employees such as Tratree were not required to give up their


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old classifications and train for new designations. If Tratree had accepted
classification under the new system, he would have received a lower pay rate.
Although Tratree was fully qualified as a Field Specialist III, he elected to retain
his old designation as Measurement Specialist I. To elevate to the next level,
Field Specialist II, Tratree was required to get on-the-job training and a “final
check-off” during regularly scheduled work hours. Tratree alleged that Grayson
Williams (“Williams”), a white, younger, and less senior employee, was favored
over him for training opportunities, and that when he complained that this
treatment was discriminatory his complaints were again ignored.
      On September 18, 2001, 3 months before Tratree was to become eligible
for an early retirement pension, BP informed Tratree that his position was being
“eliminated” because the section of pipeline from Mexia to North Zulch was
being decommissioned.        Three employees were possibly affected by the
decommission: Tratree, Bill White, and Williams. Bill White was a white man
more senior and experienced than both Williams and Tratree. Williams was
headquartered in Mexia, the station at the end of the then-to-be decommissioned
pipeline section, and although classified as a Field Specialist II, his job functions
were the same as Tratree’s. Tratree alleged that in addition to being senior to
Williams, he was also more qualified and skilled than Williams.
      After Tratree’s job was eliminated, Williams continued to work on the
section of pipeline that Tratree had worked previously, doing the same work
Tratree had done. Tratree alleged that Gleason, his manager, had decided to
eliminate Tratree’s position because of the rumor that he would take retirement
when he turned 50. As part of this plan, Tratree alleged that Gleason trained
Williams to be a Field Specialist II so that he would arguably be more qualified
than Tratree when Tratree’s job was eliminated. Tratree, however, presented
evidence that although he was not classified as such, he was and had been
performing the work of a Field Specialist II for some time.


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       Under the collective bargaining agreement (“CBA”), employees whose jobs
are eliminated are afforded “bumping” rights. Under this process, an employee
whose job is eliminated may “bump,” or replace, any person with less seniority
for whose job he is qualified. Under the “bumping” rules set forth in the CBA,
an employee whose job is under an old classification is entitled to “bump” an
employee whose job is under a new classification if the employee in the old
classification is qualified for that job.1
       When Tratree received notice that his position had been eliminated, he
was given a sheet describing his “bumping” rights. This sheet did not give
Tratree the opportunity to “bump” coworkers in new classification designations.
Thus, Tratree was not given the opportunity to bump Williams. The notification
letter also indicated that Tratree had until September 25, 2001 to exercise his
“bumping” rights.2        Although Tratree understood this deadline, instead of
exercising his rights he complained that he was not given the right to “bump”
the correct employees, including Williams. On September 24, 2001, BP sent a
second “bumping” sheet which modified his options but still did not allow
Tratree to “bump” Williams. The union chairman advised Tratree to sign the
“bumping” form and begin the grievance and arbitration procedure available
pursuant to the CBA, but Tratree refused. Ultimately, Tratree did not exercise
his “bumping” options. Consistent with the terms of the CBA, Tratree was
terminated on September 27, 2001 for failure to exercise his “bumping” rights.
       Tratree filed suit for race discrimination and retaliation under Title VII
of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e, and Section 1981, 42
U.S.C. § 1981, as well as for age discrimination, retaliation, and failure to

       1
         The CBA states, in relevant part, that “[a]ny employee whose assignment is
discontinued . . . shall exercise his/her demotional rights for any job he/she is qualified within
the new or old classification.”
       2
       The CBA provides that an employee shall have five-business-days to exercise
“bumping” rights.

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promote under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 621. The district court granted BP’s motion for summary judgment as to the
Title VII and section 1981 claims, as well as the ADEA failure-to-promote claim,
but held that Tratree presented sufficient evidence to raise genuine issues of
material fact as to his discrimination and retaliation claims under the ADEA.
After Tratree presented his case, however, the district court granted BP’s motion
for judgment as a matter of law and dismissed Tratree’s remaining claims. In
this appeal, Tratree challenges both the district court’s summary judgment order
and its judgment as a matter of law.
                                        II.
      We review the district court’s grant of judgment as a matter of law and
summary judgment de novo. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–52
(1986); Administaff Cos. v. N.Y. Joint Bd., Shirt & Leisurewear Div., 337 F.3d
454, 456 (5th Cir. 2003); Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1160 (5th
Cir. 2006). In this review, we must view all evidence in the light most favorable
to the nonmovant, drawing all reasonable inferences in his favor, and
disregarding all evidence adverse to him that a jury would not be required to
believe. Reeves, 530 U.S. at 150–51; Machinchick v. PB Power, Inc., 398 F.3d
345, 349 (5th Cir. 2005). Summary judgment is proper if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). Summary judgment may be affirmed on any ground raised below
and supported by the record. Administaff Cos., 337 F.3d at 456. Judgment as
a matter of law is appropriate if a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury does not have a legally
sufficient evidentiary basis to find for that party on that issue. FED R. CIV. P.
50(a); see also Reeves, 530 U.S. at 150.

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                                         III.
      A. Race Discrimination
      Under Title VII, it is an “unlawful employment practice for an employer
. . . to discriminate against any individual . . . because of such individual’s race.”
42 U.S.C. § 2000e-2(a)(1). Section 1981 grants equal rights to “make and enforce
contracts,” including “the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges, terms, and conditions
of the contractual relationship.” Id. § 1981(a)–(b). The district court granted
summary judgment to BP on Tratree’s claims of race discrimination under Title
VII and Section 1981.
      This Court recognizes a modified McDonnell Douglas burden shifting
framework to analyze indirect claims of discrimination. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Burrell v. Dr. Pepper/Seven Up Bottling
Group, Inc., 482 F.3d 408, 411 (5th Cir. 2007); Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004). Under this approach, the plaintiff must first
establish a prima facie case of discrimination by showing that (1) he is a member
of a protected class, (2) he is qualified for the position at issue, (3) he suffered an
adverse employment action, and (4) he was replaced by someone outside the
protected class or was treated less favorably than others similarly situated.
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir.
2001); Rachid, 376 F.3d at 312; Rubinstein v. Adm’rs of Tulane Educ. Fund, 218
F.3d 392, 399 (5th Cir. 2000) (citing Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248 (1981); Ward v. Bechtel Corp., 102 F.3d 199, 202 (5th Cir.
1997)). If the plaintiff establishes a prima facie case, the burden shifts to the
defendant to proffer a legitimate, nondiscriminatory reason for its action.
Rachid, 376 F.3d at 312. If the defendant satisfies its burden of production, the
burden then shifts back to the plaintiff to offer sufficient evidence to create a
genuine issue of material fact that either (1) the defendant’s reason is false and

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is a pretext for discrimination, or (2) that although the defendant’s reason is true
the plaintiff’s protected characteristic was a “motivating factor” in its decision.
Id.
      Tratree, an African American well qualified for his position, suffered an
adverse employment action when his position, rather than Williams’s position,
was eliminated.      He therefore established a prima face case of race
discrimination. Tratree also produced evidence that his coworkers used racial
epithets in his presence, told racist jokes, and threatened him. Additionally, he
asserted that he was treated differently from Williams and other white
coworkers and that his district manager granted more training opportunities to
whites, never hired African-Americans, and consistently fired African-Americans
more often than whites.
      BP proffered, as a nondiscriminatory explanation for its action that
Williams’s position was not eliminated because he was designated as a Field
Specialist II whereas Tratree had elected not to participate in the new
classification, retaining his old classification as Measurement Specialist I. BP
asserted that Williams’s additional training enabled him to perform more job
functions. This explanation is problematic for two reasons. First, the CBA does
not indicate that new classification employees will be favored over old
classification employees when BP considers which positions to eliminate. Thus,
BP’s argument that it has a policy of favoring new over old classifications is not
grounded in written company policy and is belied by the terms of the CBA.
Under the CBA, senior employees in old classifications retain the ability to
“bump” employees in new classifications so long as the senior employee is
qualified for the position held by the less-senior employee. Although this is most
relevant to the issue of whether BP provided the correct “bumping” options to
Tratree, it also supports an inference that when BP eliminated Tratree’s position
and refused to allow Tratree to “bump” Williams, it acted contrary to the terms


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and spirit of the CBA that BP shall not favor employees in new classifications
over those with old classifications. Second, Tratree presented evidence that he
was just as qualified as Williams, if not more so, was performing the work of a
Field Specialist II even though he had not formally achieved that designation,
and had performed all functions of his job as required on the relevant section of
the pipeline for years. Tratree presented additional evidence that he had done
this job without any complaint about his work performance, and there was thus
no question that he was able to do the job. Tratree has therefore presented
genuine issues of material fact as to whether BP’s proffered explanation is the
actual reason it eliminated his position rather than Williams’s.         We thus
conclude the district court erred in granting summary judgment on this claim.
      B. Age Discrimination and Retaliation
      The ADEA makes it unlawful to “discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such individual’s age.” 29
U.S.C. § 623(a)(1). The district court granted summary judgment to BP on
Tratree’s failure-to-promote claim and granted judgment as a matter of law to
BP on Tratree’s discrimination and retaliation claims under the ADEA.
      To establish a prima facie case of failure to promote, a plaintiff must show:
(1) he was over forty, (2) was qualified for the position sought, (3) was not
promoted, and (4) the position was filled by someone younger or the failure to
promote was due to his age. Bennett v. Total Minatome Corp., 138 F.3d 1053,
1060 (5th Cir. 1998). This Court uses the same standards of proof for indirect
discrimination claims under the ADEA as it does for Title VII and Section 1981.
Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004). As such, the
same burden shifting framework applies to Tratree’s ADEA discrimination
claims. Id. To establish a prima facie case of retaliation, a plaintiff must show
(1) that he engaged in activity protected by the ADEA, (2) that an adverse

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employment action occurred, and (3) that a causal link existed between the
protected activity and the adverse action. Banks v. East Baton Rouge Parish
Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003). Complaining about unfair treatment
without specifying why the treatment is unfair, however, is not a protected
activity. See Harris-Childs v. Medco Health Solutions, 169 Fed. Appx. 913 (5th
Cir. 2006).
      We turn, first, to Tratree’s failure-to-promote claim. Upon our review of
the record, we are satisfied that the district court did not err in determining that
Tratree did not produce evidence sufficient to establish a prima facie case of
failure to promote. Tratree alleged that BP violated the ADEA because it failed
to promote him to Field Specialist II, but by his own admissions he had not
completed the on-the-job training necessary to become eligible for the “final
check-off” that would have designated him as a Field Specialist II. As such,
Tratree failed to allege one element of the prima facie case: that he was qualified
for the position sought. The district court therefore correctly determined that
Tratree failed to state a claim for failure to promote under the ADEA, and the
district court’s grant of summary judgment on this claim was proper.
      We turn, next, to Tratree’s age discrimination claims. Tratree’s district
manager testified that Lee Edwards, then president of BP, remarked at a
company meeting that “BP does, in fact, discriminate against age.” Tratree
alleged, in addition to this, that the “multi-skilling” program started by Amoco
and continued by BP had an internal goal of discriminating against retirement
eligible workers.    Additionally, Tratree points out that a BP personnel
representative indicated that Tratree’s position was eliminated because of
rumors that he was about to retire. Finally, Tratree stated that although he was
at least as qualified as Williams, a younger worker, Tratree’s job was chosen for
elimination and Williams was retained and continued to do the work that
Tratree had previously done. Tratree also asserted that he had more seniority

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than Williams and was fully qualified to do the job, which he had been
performing without complaint for many years. Tratree thus presented a prima
facie case of age discrimination.       As discussed above, Tratree presented
additional evidence of age discrimination through the statement by the president
of BP that the company discriminates based on age3 and the statement by the
personnel representative that Tratree’s job was eliminated because BP thought
Tratree would soon retire.
      BP proffered the same nondiscriminatory explanation, here, as it did for
the race discrimination claims. As discussed above, Tratree has presented a
question of material fact as to whether BP’s proffered explanation is the actual
reason it eliminated Tratree’s position.       BP’s explanation is therefore not
sufficient to rebut Tratree’s prima facie case under McDonnell Douglas. For
these reasons, the district court erred in granting judgment as a matter of law
to BP on Tratree’s ADEA discrimination claims.
      We turn, last, to Tratree’s retaliation claims under the ADEA. BP argued,
and the district court agreed, that Tratree did not engage in protected activity
because he did not put BP on notice that he was complaining of age
discrimination when he complained that Williams (a younger, less senior
employee) was being given preferential treatment regarding training for and
eventual elevation to the position of Field Specialist II. We agree. Tratree
complained of unfair treatment directly in comparison to Williams, but he never
referred to the discriminatory treatment as age-based. In addition, although
Tratree presented evidence that BP thought that he was going to retire, Tratree
did not establish when he made his complaints, so that proof is lacking on the
essential element of causation between his complaints and the adverse
employment action he suffered. For these reasons, we are persuaded that the


      3
        We need not address whether this statement is a “stray remark” because we deem
BP’s proffered nondiscriminatory explanation for its actions unpersuasive.

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district court did not err in granting judgment as a matter of law on the age
retaliation claims.
                                      IV.
      The district court properly granted summary judgment dismissing
Tratree’s failure-to-promote claim under the ADEA and in rendering judgment
as a matter of law dismissing Tratree’s retaliation claims under the ADEA. The
court erred, however, in granting summary judgment dismissing Tratree’s race
discrimination claims under Title VII and Section 1981 and rendering judgment
as a matter of law dismissing his age discrimination under the ADEA. For the
reasons stated above, we therefore affirm the dismissal of the failure-to-promote
claim and the age retaliation claim, but vacate the dismissal of the race
discrimination and age discrimination claims and remand this case to the
district court for further proceedings not inconsistent with this opinion.
      AFFIRMED in part, REVERSED in part, and REMANDED.




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