     Case: 18-60154      Document: 00514789361         Page: 1    Date Filed: 01/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-60154                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                       January 10, 2019
BILL D. VESS,
                                                                         Lyle W. Cayce
              Plaintiff - Appellant                                           Clerk


v.

MTD CONSUMER GROUP, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC. No. 1:16-CV-80


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:*
       Bill D. Vess appeals the district court’s grant of summary judgment in
favor of Defendant MTD Consumer Group, Inc. on Vess’s Title VII and 42
U.S.C. § 1981 racial discrimination claims. For the reasons below, we AFFIRM.
                              I. FACTUAL BACKGROUND
       Vess, a white male, began work at the Verona, Mississippi plant of MTD
as a press operator in 2001. In 2003, Vess was promoted to the position of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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“robotics tech.” He performed maintenance and set the machines to run
different jobs. In 2007, Vess was promoted to “lead person” in the weld shop.
During Vess’s entire time in the weld shop, his supervisor was Walter Rock, a
white, salaried employee.
       MTD has a Non-Harassment Policy which states that any “[a]ctions,
words, jokes or comments based on an individual’s race, color, [or] gender” will
not be tolerated. In its Position Statement to the Equal Employment
Opportunity Commission (“EEOC”), MTD claimed it has a “zero-tolerance
policy” in regard to employees who use racial slurs or violate the Non-
Harassment Policy. 1
       Vess testified that throughout most of his employment, Caron Ewing, a
black, female employee, harassed him. At one company Christmas party,
Ewing inappropriately grabbed his buttocks. On another occasion, when Vess
was working on a machine, Ewing pulled down Vess’s pants in the middle of
the plant. Vess reported Ewing to MTD personnel manager Murry
Blankenship in 2012. After an investigation, MTD issued Ewing a verbal
warning.
       A few weeks before Vess’s termination, he and a black employee, Blaq,
were involved in an altercation. While Vess and Blaq argued, Ewing allegedly
stood in the background instigating the argument. Vess recalls Ewing saying,
“he ain’t no man. He’s a white man. They ain’t never made a good white man.”
       Vess reported Ewing’s racial comment to David Hancock, who was then
the plant production manager and Rock’s immediate supervisor. Ewing was
not disciplined. Approximately two weeks after Ewing’s racially-based



       1At the time of his hire and thereafter, Vess acknowledged receipt of MTD’s handbook,
including its policies prohibiting discrimination, harassment, and retaliation, as well as
MTD’s procedure for reporting any concerns.
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comment, Vess took medical leave pursuant to the Family and Medical Leave
Act (“FMLA”) for anxiety.
      While Vess was on FMLA leave, white, hourly-worker David Hamblin
gave a written statement to Human Resources (“HR”) Manager William
Cherry that Vess, white, hourly-worker Jamey Holland, and Rock were using
racial slurs. Hamblin reported that he heard Vess use the N-word multiple
times “to describe the workers or out of frustration.” Cherry then interviewed
other persons mentioned by Hamblin in his written statement. Billy Coker, a
white MTD employee, and Tommy White, a black MTD employee, confirmed
they had heard Vess use the N-word on multiple occasions. Cherry
subsequently terminated Rock and Holland.
      When Vess returned from FMLA leave, Cherry told Vess that he had
been accused of making racial slurs. Vess denied that he used racial language
but admitted that “several years” ago he had referred to a machine as being
“N-rigged.” At Vess’s request, Cherry conducted an additional investigation
that only confirmed the evidence of racial epithets made by Vess. On May 4,
2015, Cherry informed Vess that he was terminated.
      MTD operates an Employee Peer Review Board (“EPRB”), which has the
authority to affirm or overturn employment decisions by management. Both
Vess and Holland appealed to the EPRB. 2 On April 14, 2015, the EPRB
overturned Holland’s termination. On May 7, 2015, the EPRB, consisting of
four black employees and one white employee, voted three-to-two to uphold
Vess’s termination. 3 After Vess’s termination, MTD selected a white male for
the position.



      2   Rock could not appeal because he was a management employee.

      3   Vess’s EPRB had the exact same racial make-up as Holland’s.
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                               II. PROCEDURAL HISTORY
       Vess’s lawsuit alleged that MTD terminated his employment because of
his race, sex, age, and disability, as he was a white male, 59-years old at the
time of his termination, and suffered from anxiety. He also claimed MTD
terminated him in retaliation for taking leave under the FMLA. 4 On May 12,
2017, MTD filed a motion for summary judgment, arguing that all of Vess’s
claims were without merit and should be dismissed as a matter of law. On May
26, 2017, Vess filed his response in opposition to MTD’s motion. The district
court granted MTD’s motion for summary judgment on all claims on February
16, 2018. The district court found that Vess failed to identify any proper
comparators who were treated more favorably under nearly identical
circumstances, and that Vess failed to demonstrate that MTD’s legitimate,
non-discriminatory reason for terminating his employment was merely pretext
for unlawful racial discrimination. Vess appeals only the district court’s entry
of summary judgment in favor of MTD on his racial discrimination claim.
                                      III. DISCUSSION
A. Racial Discrimination in Violation of Title VII and 42 U.S.C. § 1981
       The Fifth Circuit reviews a lower court’s grant of summary judgment de
novo, applying the same standard as the district court. Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010). Summary judgment is appropriate where the
pleadings, depositions, answers to interrogatories and admissions on file,
together with any affidavits, show there are no genuine issues of material fact
and that the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.
R. Civ. P. 56(c)). Not every factual dispute between the parties will prevent


       4 Vess abandons his claims for age, disability, and sex discrimination, as well as his
retaliation claim for exercising his rights under the FMLA for purposes of this appeal.
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summary judgment; rather, the disputed facts must be material and must have
the potential under the substantive law governing the issue to affect the
outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). A plaintiff’s mere beliefs, conclusory allegations, speculation, or
unsubstantiated assertions are insufficient to survive summary judgment. See
Clark v. Am.’s Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (citation
omitted).
      The summary judgment analysis is the same for racial discrimination
claims under § 1981 and Title VII. Davis v. Dall. Area Rapid Transit, 383 F.3d
309, 316 (5th Cir. 2004). Claims of discrimination based on circumstantial
evidence, such as here, are subject to the McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973). To survive a summary judgment motion under this framework:
      The plaintiff must first demonstrate a prima facie case, and then
      the burden of production shifts to the defendant to proffer a
      legitimate, non[-]discriminatory reason for its action. If it does
      that, the presumption of discrimination disappears. The plaintiff,
      who always has the ultimate burden, must then produce
      substantial evidence indicating that the proffered legitimate non[-
      ]discriminatory reason is a pretext for discrimination.

Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016) (internal
citations and quotation marks omitted).
      A plaintiff may establish a prima facie case of discrimination by showing
that: “(1) he is a member of a protected class; (2) he was qualified for the
position at issue; (3) he was the subject of an adverse employment action; and
(4) he was treated less favorably because of his membership in that protected
class than were other similarly situated employees who were not members of
the protected class, under nearly identical circumstances.” Lee v. Kan. City S.


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Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009); Alvarado v. Tex. Rangers, 492 F.3d
605, 611 (5th Cir. 2007). 5
       It is undisputed that Vess meets the first three prongs in his prima facie
case: he is a member of a protected class, he was qualified for the position, and
his employment was terminated. The disputed issue is whether others
similarly situated but outside his protected class were treated more favorably
under nearly identical circumstances.
       We conclude that Vess failed to meet his prima facie burden. 6 As a
general rule, employees are not similarly situated if they work under different


       5 Quoting Dulin v. Board of Commissioners of Greenwood Leflore Hospital, 586 F.
App’x 643, 648 (5th Cir. 2014) (per curiam) (unpublished), Vess argues for the first time on
appeal that to satisfy the fourth prong of the prima facie case he need only have shown that
he was “otherwise discharged because of his membership in the protected class” and that he
did not need to identify any similarly situated comparator. However, Dulin is not controlling
here. Further, Vess improperly conflates his burden at the prima facie stage with this court’s
holdings regarding the issue of pretext. Quoting Rachid v. Jack in the Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004), Vess claims he can meet his prima facie burden by showing “that the
defendant’s reason, while true, is only one of the reasons for its conduct, and another
‘motivating factor’ is the plaintiff’s protected characteristic” (citation omitted). However, this
so-called mixed-motives analysis does not arise unless Vess first establishes a prima facie
case of discrimination. Applying a Title VII analysis to an ADEA claim, the court in Rachid
held:

       Under . . . the modified McDonnell Douglas approach: the plaintiff must still
       demonstrate a prima facie case of discrimination; the defendant then must
       articulate a legitimate, non-discriminatory reason for its decision to terminate
       the plaintiff; and, if the defendant meets its burden of production, the plaintiff
       must then offer sufficient evidence to create a genuine issue of material fact
       either (1) that the defendant’s reason is not true, but is instead a pretext for
       discrimination (pretext alternative); or (2) that the defendant’s reason, while
       true, is only one of the reasons for its conduct, and another motivating factor
       is the plaintiff’s protected characteristic (mixed-motive[s] alternative).

Id. at 312 (emphasis added) (citations omitted).

       6The district court assumed without deciding that Vess established a prima facie case
by denying that he had violated a work rule and proceeded to the next steps in the McDonnell
Douglas analysis. See Vess v. MTD Consumer Group, Inc., No. 1:16-cv-00080, 2018 WL
934935, at *7 (N.D. Miss. Feb. 16, 2018) (“District courts in the Fifth Circuit are split on
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supervisors, work for different divisions of a company, have different work
responsibilities, or commit dissimilar work violations. Lee, 574 F.3d at 259–60;
see also Frazier v. Sabine River Auth. La., 509 F. App’x 370, 373 (5th Cir. 2013)
(per curiam) (unpublished); Amezquita v. Beneficial Tex., Inc., 264 F. App’x
379, 386 (5th Cir. 2008) (per curiam) (unpublished) (stating that “[] distinction
in position and supervision has been held sufficient to establish that two
persons are not similarly situated.”).
       Vess makes several arguments on appeal. His primary argument is that
the district court’s view of what it means to be a “nearly identical” comparator
was too narrow. He avers that he “cannot identify a particular black lead
person who used the exact same discriminatory language (‘N-rigged’) as he did.
Such a requirement is practically impossible. [He] can, however, prove that
black persons pervasively used the same racially-charged word (the N-word),
and can also prove that race-based comments by Ewing were made almost
immediately before [his] discharge, whereas, on the other hand, his ‘N-rigged’
comment is ‘several years’ old.”
       As the district court duly noted, Vess does not offer any evidence to show
that the black employees were similarly situated or that their use of the N-
word was ever reported. We therefore remain unpersuaded by this first claim.
Similarly, Vess fails to present evidence that Ewing is a viable comparator.
Vess agrees he held a position of leadership, was held to a higher standard of



whether a simple, self-serving denial, as Vess presents, is sufficient to establish a prima facie
case.”). However, MTD’s policy specifically prohibits the use of racial slurs, Vess admitted he
used the N-word in the workplace on at least one occasion by referring to a machine as “N-
rigged,” and courts have found his admitted use of the term “N-rigged” to be on par with other
uses of the N-word. See Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 862 n.8 (5th Cir.
1993) (citing Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515, 1521–22 (11th Cir. 1986)
(school superintendent’s comment referring to a school system as “n-----rigged” was direct
evidence of discriminatory animus).
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conduct, and was an example to the employees he supervised. Ewing was an
operator and not in a position of leadership. Vess worked in the weld shop and
Ewing worked in the press shop. Rock was Vess’s supervisor and Kebby Hardin
was Ewing’s supervisor.
      Moreover, Ewing’s comment of “no good white men” (not reported to HR)
is not “nearly identical” to the corroborated complaint against Vess (reported
to HR) that he used the N-word on multiple occasions in the workplace. “It is
beyond question that the use of the ‘[N-]word []’ is highly offensive and
demeaning, evoking a history of racial violence, brutality, and subordination.”
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004). This word
is “perhaps the most offensive and inflammatory racial slur in English, . . . a
word expressive of racial hatred and bigotry.” Swinton v. Potomac Corp., 270
F.3d 794, 817 (9th Cir. 2001) (citation omitted) (ellipsis in original); see also
Daso v. Grafton Sch., Inc., 181 F. Supp. 2d 485, 493 (D. Md. 2002) (“The [N-]
word [] is more than [a] ‘mere offensive utterance’ . . . . No word in the English
language is as odious or loaded with as terrible a history.”); Rodgers v. W-S
Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993). (citations omitted) (“Perhaps no
single act can more quickly alter the conditions of employment and create an
abusive working environment than the use of an unambiguously racial epithet
such as [the N-word] [] by a supervisor in the presence of his subordinates.”).
      While the N-word is an “expressi[on] of racial hatred and bigotry,” “no
good white men” is more akin to “a ‘mere offensive utterance.’” See Swinton,
270 F.3d at 817; Daso, 181 F. Supp. 2d at 493. Therefore, because comparative
employees must be “nearly identical” in their workplace conduct, Vess failed to
show similar violations between him and Ewing. See Lee, 574 F.3d at 259
(finding “employees . . . who are subjected to adverse employment action for
dissimilar violations are not similarly situated.”); Glaskox v. Harris County,

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537 F. App’x 525, 530 (5th Cir. 2013) (per curiam) (unpublished); Wallace v.
Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001).
      In addition, Cherry testified that he could not recall a single incident
when he received a report of an employee’s use of racial slurs that did not result
in termination. The only similar incident involving racial slurs that Cherry
could recall also resulted in termination. As such, the district court correctly
found that Vess failed to identify any proper comparators who were treated
more favorably under nearly identical circumstances.
      Even so, MTD has presented a legitimate, non-discriminatory reason for
his discharge: MTD terminated Vess because HR received a formal complaint
about his use of racial slurs in the workplace. To overcome MTD’s non-
discriminatory reason, Vess would have to “show[] that [MTD’s] proffered
explanation is false or ‘unworthy of credence.’” Thomas v. Johnson, 788 F.3d
177, 179 (5th Cir. 2015) (citation omitted). He must do more than merely
dispute MTD’s reasoning and methods. See id. (holding that a factual dispute
regarding reason for termination insufficient to establish pretext where
plaintiff failed “to show not only that the determination was wrong, but also
that it was reached in bad faith”).
      Vess claims no witness provided a specific racist statement made by him.
He also provides what he calls “persuasive explanations” as to why witnesses
may have lied about him making racist statements. Vess described “hard
feelings” between him and Hamblin, arising out of Hamblin’s desire to direct
the work in the shop. Vess also questions White’s credibility because Vess had
continuously corrected him for taking God’s name in vain, and because White
believed that Vess was dating his girlfriend. Vess further claims that MTD was
motivated by Vess’s association with Rock, who Vess claims is a racist.


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       We find that Vess’s arguments are without merit. MTD terminated
Vess’s employment only after receiving a formal complaint that was
corroborated by multiple employees of different races, who stated during
MTD’s investigation that they heard Vess use racial slurs more than once in
the workplace. Although Vess initially denied ever using the N-word, he now
admits that he used the term on at least one occasion in the workplace. Even
without Vess’s admission, Cherry conducted two investigations that uncovered
evidence to support the conclusion that Vess used racial slurs at work,
including one incident Hamblin states occurred right before Vess went on
FMLA leave. 7 Consequently, the district court correctly found that Vess failed
to demonstrate that MTD’s legitimate, non-discriminatory reason for
terminating his employment was merely pretext for unlawful racial
discrimination. 8




       7   Vess also contends that “the district court should not have credited any defense
witnesses’ testimony about what they thought [he] had said, since the evidence of the movant
can be believed even if uncontradicted, only when it ‘comes from disinterested witnesses.’”
See Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d 940, 943 (5th Cir.
2015) (“While the court must disregard evidence favorable to the moving party that the jury
is not required to believe, it gives credence to evidence supporting the moving party that is
uncontradicted and unimpeached if that evidence comes from disinterested witnesses.”
(citation omitted)). However, this court has specifically rejected Vess’s contention that
decisionmakers in employment cases are “interested witnesses” simply because of their
positions. See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002) (“The
definition of an interested witness cannot be so broad as to require us to disregard testimony
from a company’s agents regarding the company’s reasons for discharging an employee.”
(citations omitted)); see also Roberson v. Alltel Info. Servs., 373 F.3d 647, 653 (5th Cir. 2004)
(“Roberson provides no valid reason why Helms was an interested witness except to suggest
that all decisionmakers are, by definition, interested witnesses. However, this is not our law
. . . .”).

       8For the same reasons, Vess has failed to demonstrate that a “motivating factor” for
MTD’s termination of Vess was his race. See supra n.5 (citing Rachid; discussing mixed-
motives alternative).
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                             IV. CONCLUSION
     Based on the foregoing reasons, we AFFIRM the district court’s
judgment.




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