     Case: 15-30489      Document: 00513452060         Page: 1    Date Filed: 04/05/2016




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

                                      No. 15-30489                                 FILED
                                                                                April 5, 2016
                                                                              Lyle W. Cayce
GERALD BROWN,                                                                      Clerk

              Plaintiff - Appellant

v.

HOME DEPOT USA, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1470


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant appeals the district court’s grant of summary
judgment dismissing his employment discrimination claim against the
Defendant-Appellee. We affirm.
                                        I.
       Gerald Brown is an African American who worked for Home Depot USA,
Inc. (Home Depot) for twenty-five years. On July 4, 2013, Home Depot


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 15-30489
terminated Brown for deficient performance as an assistant store manager at
its Marrero, Louisiana location. By the time Home Depot fired Brown, he had
accumulated numerous oral and written reprimands for substandard work.
      Brown’s struggles began eight years before his termination when he
failed to attend a mandatory store audit. On October 5, 2009, Home Depot
disciplined Brown again because he failed to ensure that associates under his
control complied with markdown procedures. Two months later, Home Depot
reprimanded Brown when he failed to follow the proper procedure for an
absence.
      Brown transferred to the Marrero store in 2010, and his deficiencies
continued. Brown’s 2011 annual evaluation described his poor performance.
Although it noted that Brown delegated well and associates considered him
approachable, the evaluation stated that he needed improvement in numerous
areas including: “Developing Direct Reports” from supervisors, “Managing and
Measuring Work” of associates, and “Conflict Management.” While it
ultimately scored Brown a “Valued Associate,” Home Depot explained that
eighty percent of employees are ranked as valued. Moreover, there are
different levels of Valued Associate, and it could include a “bottom performer.”
      Brown’s mid-year evaluation also described areas that needed
improvement. The evaluation stated that Brown “need[s] to be proactive in
addressing business needs and trends.” Also, the evaluation said that Brown
“need[s] to take an active role in the pro desk. . . [and] [d]evelop pro paint
business.” Finally, the evaluation instructed Brown to “listen to associates and
address and coach areas of opportunity.”
      Brown’s 2012 annual evaluation also raised significant concerns about
his performance. It described that Brown “lack[s] in the enthusiasm and drive
needed for consistent performance in all aspects of the business.” Specifically,


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                                 No. 15-30489
the evaluation noted that Brown “has to improve his focus on the big 3
(customer service, instock, [sic] and store appearance).”
      In addition to these evaluations, Brown had numerous reprimands at the
Marrero store. On July 12, 2011, Home Depot disciplined Brown when he
failed to complete a mandatory checklist. On December 22, 2011, it
reprimanded Brown for failing to monitor and follow markdown procedures.
On April 12, 2012, Home Depot disciplined Brown after his department made
a “minimal execution” of “shrink plans” without any “follow up from Gerald
Brown.” Again, on May 14, 2012, Brown failed to “ensure proper execution of
shrink plans” and received a reprimand. Two months later, Home Depot
disciplined Brown for failing to report a workplace injury.
      Brown was reprimanded again on July 11, 2012 for the failure to follow
markdown procedures. Brown received another discipline on January 19, 2013
for failing to follow the attendance policy. His penultimate discipline occurred
on February 1, 2013 after Brown could not “speak to the basics of the
[contractor] business nor how to utilize report data” with the district
management team.
      Home Depot issued its termination notice to Brown after a substandard
performance on June 25, 2013 during a district business review. The notice
explained that Brown had “not improved to an acceptable level of performance
for a salaried associate. His lack of engagement continued along with no real
sense of urgency or enthusiasm to try to improve to an acceptable level.”
      Brown filed a charge with the Equal Employment Opportunity
Commission (EEOC) and alleged that Home Depot terminated him because of
his race. After Brown received a right to sue notice from the EEOC, he filed a
complaint in the district court against Home Depot asserting race




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                                      No. 15-30489
discrimination in violation of federal and state law. 1 Home Depot filed a motion
for summary judgment and argued that Brown had no evidence to create a
genuine issue of material fact.
         The district court granted Home Depot’s motion for summary judgment
and dismissed Brown’s action. The district court held that Brown could not
establish a prima facie case of discrimination because Home Depot did not
replace him with a person outside his protected class nor did it treat a similarly
situated employee outside his protected class more favorably. Alternatively,
the district court determined that Home Depot articulated a non-
discriminatory reason to terminate Brown – poor performance. It also found
that Brown failed to prove Home Depot’s reason was pretext for discrimination
because he only disagreed with its belief that he performed inadequately.
Brown now appeals.
                                       II.
         We review the district court’s grant of summary judgment de novo. 2
Summary judgment requires that the moving party establish that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of
law. 3
                                      III.
         Brown argues that he created a genuine issue of material fact that Home
Depot terminated him based on race discrimination. The McDonnell Douglas
framework applies to race discrimination claims based on circumstantial
evidence. 4 Under McDonnell Douglas, the threshold inquiry is whether the



         Brown asserted causes of action based on Title VII of the Civil Rights Act of 1964,
         1

42 U.S.C. § 1981, and Louisiana Statute § 23:301.
       2 N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir.

2015).
       3 Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997).
       4 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).

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                                       No. 15-30489
plaintiff can establish a prima facie case of discrimination. 5 If a plaintiff makes
out his prima facie case, the burden shifts to the employer to articulate a
legitimate non-discriminatory reason for its action. 6 Finally, the burden shifts
back to the plaintiff to prove that the articulated reason is pretext for
discrimination. 7
       Assuming that Brown established a prima facie case, Home Depot
articulated a legitimate non-discriminatory reason for its action. In particular,
Home Depot explained that it terminated Brown after a history of poor
performance and no improvement in his work. Thus, the burden shifts back to
Brown to show that its reason was pretext for discrimination.
       Brown argues that Home Depot’s articulated reason was pretext for
discrimination because it was false or unworthy of credence. A plaintiff may
show discriminatory pretext in two ways: (1) evidence of disparate treatment
or (2) evidence that the proffered explanation is false or unworthy of credence. 8
Brown argues only that Home Depot’s explanation is false.
       Brown asserts that Home Depot’s reason is false because he did not
violate Home Depot policies. However, Home Depot provided substantial
documentation that reflected Brown’s poor performance. By contrast, Brown
only argues that Home Depot incorrectly documented his conduct as violations
because his performance actually satisfied company standards. 9 This misses


       5 Willis v. Cleco Corp., 749 F.3d 314, 317-18, 320 (5th Cir. 2014).
       6 Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015).
       7 Id.
       8 Id.
       9 Brown claims that his write up on July 11, 2012 for failing to follow markdown

procedures was “officially repudiated.” His record citation, though, reveals nothing to support
that assertion. Brown also claims that Home Depot’s reprimand on January 19, 2013 for
attendance violations “was a complete mistake” because he was scheduled for a later shift
and did not miss work. However, Brown does not dispute that he sent the store manager a
text message explaining that he was sick after he received multiple calls asking why he did
not show up for work. Quite simply, if Brown was not on the schedule for that time period,
he had no reason to give an excuse for missing work.
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                                       No. 15-30489
the mark; to show pretext for discrimination, it requires more than showing
“an incorrect belief that an employee’s performance is inadequate.” 10
       Additionally, Brown argues that Home Depot failed to communicate its
performance concerns to him. 11 Nevertheless, Brown acknowledged that he
received numerous write-ups that spanned from 2004 to 2013. Moreover, each
reprimand outlined why Home Depot considered his conduct deficient, which
gave Brown the chance to modify his work.
       Finally, Brown argues that Home Depot’s reason is false because he
received several performance awards. Even if Brown’s awards convinced us
that Home Depot inaccurately assessed Brown’s performance – which they do
not – that alone would be insufficient to support a finding of pretext. 12
Therefore, the district court correctly concluded that Brown failed to
demonstrate a genuine issue of material fact that Home Depot’s articulated
reason was pretext for discrimination.
                                          IV.
       For these reasons, we AFFIRM the judgment of the district court.




       10  Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).
       11  In particular, Brown asserts that he did not see a write-up for the failure to report
a workplace injury, an “action plan” for his final warning, and two “follow ups” on the action
plan.
        12 Cf. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (“Even if

the trier of fact chose to believe an employee’s assessment of his performance rather than the
employer’s, that choice alone would not lead to a conclusion that the employer’s version is. .
.pretext[.]”).
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