                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                        REVISED April 3, 2007
                   UNITED STATES COURT OF APPEALS             March 20, 2007
                        For the Fifth Circuit
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 06-10267




                          DARRY L. BURRELL,

                                                Plaintiff-Appellant,


                               VERSUS


   DR PEPPER/SEVEN UP BOTTLING GROUP, INC.; DR PEPPER/SEVEN UP
                        BOTTLING GROUP, L.P.




                                                Defendants-Appellees



             Appeal from the United States District Court
         For the Northern District of Texas, Dallas Division



Before DAVIS and STEWART, Circuit Judges, and GODBEY*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

     Darry L. Burrell (“Burrell”) appeals the dismissal on summary

judgment of his employment discrimination and retaliation claims

against defendant Dr. Pepper/Seven Up Bottling Group, L.P. (“Dr.



     *
      District Judge of the Northern District of Texas, sitting
by designation.

                                  -1-
Pepper”).    We AFFIRM in part and VACATE and REMAND in part.

                                     I.

     Burrell, an African-American male, began his employment with

Dr. Pepper    as   the   Corporate   Purchasing   Manager   in   May   2001.

Burrell initially worked under Penny Soriano (“Soriano”), Dr.

Pepper’s Vice President of Purchasing, to centralize and manage

national purchasing for Dr. Pepper.         Burrell’s responsibilities

included assisting in both the negotiation and management of

various term contracts with Dr. Pepper suppliers.

     In May 2002, Soriano resigned and recommended that Burrell be

hired to replace her as Vice President of Purchasing.              Burrell

spoke with Tom Taszarek ("Taszarek"), Executive Vice President of

Administration, expressing his interest in being promoted to the

vacant position.    Ultimately, however, Dr. Pepper did not promote

Burrell and instead sought a replacement from outside the company.

The parties dispute the reason given by Dr. Pepper for its decision

not to promote Burrell.      Burrell alleges that Dr. Pepper told him

that it wanted to hire someone with more “purchasing experience.”

On the other hand, Dr. Pepper states "purchasing experience in the

bottling industry" was the relevant criteria.               In June 2002,

Burrell suggested to Taszarek that his failure to be promoted was

actually the result of racial discrimination and he gave Taszarek

a copy of the book Roberts v. Texaco: A True Story of Race and

Corporate America. Burrell told Taszarek that his treatment at Dr.

Pepper was analogous to the experience of the plaintiff employee in

                                     -2-
the litigation detailed by the book.

      In October 2002, Dr. Pepper hired Ted Koester ("Koester"), a

white male, to fill the vacant position of Vice President of

Purchasing.        Immediately preceding his arrival at Dr. Pepper,

Koester     served       as   the   Logistics    Manager      for   a   Coca-Cola

distribution center in San Antonio.              He held that position for

approximately two years, but had been at Coca-Cola for 13 years.

According    to    his    resume,    Koester,   as     Logistics    Manager,    was

responsible for the management of a 27 million case distribution

center with a direct staff of 99 people.               In addition, Koester had

experience in the negotiation of contracts with carriers and the

purchasing of production/warehouse materials.                In his deposition,

Koester explained that one such contract was valued at near 30

million dollars.

      Although Burrell was not promoted to the position of Vice

President of Purchasing, the parties agree that he took on many

duties associated with the position after the departure of Soriano

in   May   2002,     through    Koester’s     hiring    in   October    2002,   and

continuing into February 2003 while Koester became familiar with

the company and his new job.          Burrell reported directly to CEO Jim

Turner (“Turner”) during this time and aided in the company’s

purchasing functions.          Dr. Pepper concedes that Burrell got high

marks for his work during this transition period. Burrell received

a salary increase and also received a bonus in February 2003 for

his performance.         In addition, Burrell was selected in March 2003

                                        -3-
to attend an annual company trip designated for high performing

employees.

     Despite these positive performance indicators, Burrell and

Koester clashed, almost from the beginning of Koester’s employment.

During their first telephone conversation in October of 2002 (just

after Koester was hired), Burrell says he became concerned about

Koester’s qualifications when Koester allegedly admitted to him

that he had no purchasing experience and that Burrell would have to

teach him purchasing.   During that same conversation, Burrell says

he became offended when Koester stated that he had no qualms about

firing employees and would even fire his own mother; in response,

Burrell hung up on Koester.   Later that month, Burrell claims that

Koester attempted to tell him a racist joke.   In addition, around

the same time, Koester allegedly told Burrell that there was

something about Burrell that intimidated him.       For his part,

Koester alleges that Burrell engaged in various insubordinate acts

during this period including failing to submit weekly reports and

vacation requests as well as refusing to complete an assigned

project.

     These exchanges prompted several meetings between Burrell and

Taszarek in which Burrell would complain about Koester's behavior

and lack of qualifications.   In one meeting with Taszarek, in the

Spring of 2003, Burrell compared his situation to that of class

action litigants who had alleged racial discrimination against

Coca-Cola.   Burrell gave Taszarek copies of two magazine articles

                                -4-
that detailed the lawsuit.

      The conflict accelerated in July 2003 when Koester gave

Burrell a negative performance review. The report rated Burrell as

marginal and unsatisfactory (the two lowest ratings) in five of six

categories of performance.         Burrell requested and was granted

permission to respond in writing to the evaluation and he delivered

his written response (with copies to the CEO Turner and Taszarek)

on August 4, 2003.      Burrell’s response characterized Koester’s

evaluation as a “completely inappropriate and unprofessional attack

on [his] character” and went on to dispute the accuracy of the

evaluation through three pages of supporting facts.              Further,

Burrell questioned Koester's ability to give an accurate evaluation

for the previous year since Koester had not arrived until October

2002 and, even then, Burrell continued reporting directly to the

CEO until February 2003.    On the same day that Burrell's response

was delivered and after consultation between Taszarek and Turner,

Dr. Pepper terminated Burrell's employment.

      After refusing a conditional severance package, Burrell filed

a   charge   of   discrimination   and   retaliation   with   the   Equal

Employment   Opportunity   Commission    (“EEOC”)   over   Dr.   Pepper’s

failure to promote him and his subsequent termination.              After

receiving a right-to-sue letter from the EEOC, Burrell filed suit

in district court for (1) unlawful discrimination for refusal to

promote, (2) unlawful discrimination for termination based upon

race, and (3) unlawful retaliation for termination based upon

                                   -5-
previous complaints of race discrimination.

       Dr. Pepper moved for summary judgment. In support, Dr. Pepper

asserted      that    Burrell     had   failed    to     sufficiently          refute   its

legitimate, non-discriminatory reason for hiring Koester rather

than promoting Burrell: Koester’s greater experience in bottling.

On the claims related to Burrell’s termination, Dr. Pepper alleged

that    the    termination        was     because       of     insubordination,         and

specifically cited (1) Burrell's failure to turn in weekly reports

and vacation requests to Koester; (2) Burrell's complaints about

Koester's      qualifications;          (3)   Burrell's        refusal     to    research

possible cost and supplier reductions in regards to a company

project;      and     (4)    Burrell's        written        response     to    Koester's

evaluation.

       The district court granted Dr. Pepper’s motion for summary

judgment, dismissing all of Burrell’s claims.                        On the failure to

promote claim, the district court held that Burrell could not

demonstrate         that    Dr.   Pepper’s       reason        was    a   pretext       for

discrimination because the evidence did not establish that he was

“clearly more qualified” than Koester.                  On the termination claims,

the district court held that Burrell had not raised a genuine issue

of fact on the legitimacy of Dr. Pepper’s proffered reason for his

termination, namely, insubordination.

                                           II.

       We review the district court's grant of summary judgment de



                                           -6-
novo.1    Summary judgment is proper “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.”2          An issue is “genuine” if the

evidence is sufficient for a reasonable jury to return a verdict

for the non-moving party.3      A fact issue is “material” if its

resolution could affect the outcome of the action.4        We construe

all facts and inferences in the light most favorable to the

non-moving party when reviewing a summary judgment.5

                                 III.

      A claim of employment discrimination can be proven through

direct or circumstantial evidence.6      Where, as here, the plaintiff

does not produce any direct evidence of discrimination, we apply

the   well-known   McDonnell-Douglas    burden-shifting   framework   as




      1
       Jones v. Comm'r, 338 F.3d 463, 466 (5th Cir. 2003).
      2
       Fed. R. Civ. P. 56(c).
      3
      Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th
Cir. 2000).
      4
       Id.
      5
      Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454 (5th
Cir. 2005) (internal quotation and citation omitted).
      6
      Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 219 (5th
Cir. 2001).

                                 -7-
modified and restated by this court.7

     Under the modified McDonnell-Douglas approach, the plaintiff

must first 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 that either (1) the employer’s reason is a pretext or (2) that

the employer's reason, while true, is only one of the reasons for

its conduct, and another “motivating factor” is the plaintiff's

protected characteristic.8

                                    A.

     Dr. Pepper concedes that Burrell has established his prima

facie case on his failure to promote claim: (1) he belongs to a

protected class; (2) he applied for and was qualified for a

position for   which   applicants    were   being   sought;   (3)   he   was

rejected; and (4) a person outside of his protected class was hired

for the position.9

     Dr. Pepper responds to Burrell’s prima facie case with a

legitimate, nondiscriminatory reason for not promoting Burrell to

     7
      See Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th
Cir. 2004) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
     8
      Id.
     9
      See Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 680-81
(5th Cir. 2001).

                                    -8-
the Vice President of Purchasing Position: Dr. Pepper desired

someone with more “purchasing experience in the bottling industry.”

     Burrell has two methods available to him to try to prove that

Dr. Pepper’s proffered reason for failing to promote him was a

pretext for racial discrimination: (1) Burrell could show that Dr.

Pepper’s proffered explanation is false or “unworthy of credence”;10

or (2) Burrell could try to prove that he is “clearly better

qualified” than the person selected for the position.11

     We first consider whether Burrell produced sufficient evidence

to demonstrate that Dr. Pepper’s proffered rationale for its

employment decision is false.        An employer’s explanation is false

or unworthy of credence if it is not the real reason for the

employment action.12

     Burrell attempts to demonstrate the falsity of Dr. Pepper’s

experience rationale primarily by comparing his relevant purchasing

experience with that of Koester.       Specifically, Burrell cites his

     10
          Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
     11
      Celestine v. Petroleos de Venzella SA, 266 F.3d 343,
356-57 (5th Cir. 2001). The district court only assessed whether
Burrell had established that he was “clearly better qualified”
than Koester. While a showing that a plaintiff is "clearly
better qualified" is one way of demonstrating that the employer's
explanation is a pretext, it is not the only way. Pretext may be
shown by any evidence which demonstrate’s the employer’s
proffered reason is false. See, e.g., Gee v. Principi, 287 F.3d
342, 347-48 (5th Cir. 2002) (an employer's inconsistent
explanations for its employment decisions at different times
permits a jury to infer that the employer's proffered reasons are
pretextual).
     12
          Laxton, 333 F.3d at 578.

                                     -9-
role as the Corporate Purchasing Manager under Penny Soriano as

well as his increased responsibilities during the period of time

after her departure and continuing into the first several months of

Koester’s     tenure   as    comprising     nearly    two       years    of   relevant

“purchasing experience in the bottling industry.”                       Burrell notes

that, in addition to the length of his service, the strength of his

experience is demonstrated by the special recognition he received

through increases in pay and his invitation on the company trip.

Burrell argues that Koester’s experience at the time of the hiring

decision was far less extensive than his, a fact he believes is

established by the depositions of Taszarek and Koester.                       Burrell

argues that evidence of his strong background in purchasing and

Koester’s relatively weak background, along with his exemplary

performance of the Vice President of Purchasing duties during

Koester’s initial months of employment, supports the conclusion

that   Dr.    Pepper   did    not   seek    someone      with    more     “purchasing

experience in the bottling industry.”

       Burrell also attempts to demonstrate the falsity of Dr.

Pepper’s rationale by arguing that Dr. Pepper’s explanation for its

employment decision has failed to remain consistent. He notes that

initially, in Dr. Pepper’s letter to the EEOC, it asserted that

Burrell      was   passed    over   based    on    his    lack     of     “purchasing

experience,” but that in its motion for summary judgment below, Dr.

Pepper asserted that Koester’s greater “bottling experience” was

the reason Burrell was not promoted.              Burrell argues that neither

                                      -10-
of these rationales matches Dr. Pepper’s explanation to this court,

that   Koester   was    selected     over       Burrell     because    he    had   more

“purchasing experience in the bottling industry.”

       Dr.   Pepper   characterizes       the     evidence    differently.          The

company states that, far from representing significant purchasing

experience, Burrell’s duties during the period immediately before

and after Koester’s hiring can best be characterized as that of a

functionary,     responsible        only        for   information          collection.

Burrell’s assistance in contract negotiations being conducted by

CEO Jim Turner, Dr. Pepper continues, did not actually constitute

hands-on negotiation and purchasing of raw materials and supplies

which it expected the Vice President of Purchasing to perform.                       On

Koester’s experience, the company argues that Koester’s 13 years

with   Coca-Cola      and   his   most    recent      two   years     of    management

experience in supply chain system and procurement procedures were

all valuable experience in taking over purchasing for Dr. Pepper.

Dr. Pepper points out, for instance, that one obvious benefit of

this experience was Koester’s relationships with a large number of

Dr. Pepper’s suppliers.           In addition, Dr. Pepper cites Koester’s

deposition testimony, establishing his purchase of over $30 million

in   equipment while at Coca-Cola, as evidence of his qualification

for the Vice President of Purchasing position.

       Dr.   Pepper     also      attempts      to    reconcile       the    apparent

inconsistencies between the explanations for not promoting Burrell

it offered to the EEOC (“purchasing experience”) and to this court

                                         -11-
(“purchasing experience in the bottling industry”) by describing

the second statement as a mere clarification of the type of

purchasing experience that Dr. Pepper felt was important.

     Having       considered     these    arguments,     and    after     our   own

independent review of the record, we conclude that a genuine issue

of material fact remains regarding whether Dr. Pepper’s hiring

decision    was    based    on   purchasing     experience     in   the   bottling

industry.

     Despite Dr. Pepper’s evidence of Koester’s long service with

its top competitor, it is clear that the bulk of his experience was

not in the negotiation of contracts and purchasing raw materials

and supplies, but rather in management and operations.                    Koester’s

own resume and deposition testimony indicates that he lacked

significant purchasing experience in the bottling industry.                     For

instance, while at one point listing contract negotiation as one of

his duties as Logistics Manager, Koester’s resume offered no

specific instance of contract negotiation in the 13 bullet pointed

highlights of his accomplishments at Coca-Cola. The resume notably

omits mention of the $30 million in purchasing which Koester

asserted in his deposition.               However, even accepting the $30

million claim at face value, Koester conceded that this did not

necessarily       qualify    him   to     handle   Dr.   Pepper’s       purchasing

operation, since that budget approached “north of $750 million”

which made “quite a bit of difference.”            In addition, while Koester

had a relationship with a large number of Dr. Pepper’s suppliers,

                                         -12-
this apparent strength arguably applied just as strongly, if not

more so,     to    Burrell’s   case    for    the   promotion,    since    Burrell

presumably had working relationships with all of Dr. Pepper’s

current suppliers.

     Most significantly, the testimony of Taszarek, the man who

ultimately hired Koester, permits the inference that Dr. Pepper was

aware that Koester had less purchasing experience in the bottling

industry    than    Burrell.     For    instance,      at   one   point    in   his

testimony,    Taszarek    admitted      that    Burrell     had   more    relevant

purchasing experience than Koester.13               He also acknowledged that

Koester’s “main experience was[] in distribution and warehousing”

and not in purchasing for product lines or negotiation of product

prices.14    Taszarek further conceded that, as a logistics manager,

Koester probably would not have been involved in the negotiation of

     13
      Q: Would you agree that Mr. Burrell had more purchasing
experience in the purchasing department than Mr. Koester did?
     A: Indirectly, yes. I mean, I guess what he had done
before, as far as sitting at a desk and placing orders and
coordinating purchases, yeah, I would say he had more of that.

     . . . .

     A: Yeah, I would say he had done more of what I would call
purchasing, straight ahead purchasing.
     14
      Q: Right. But is that what you understood Mr. Koester’s
main experience was, in distribution and warehousing?
     A: I guess so. If I understand the question right, yeah.
     Q: Okay.
     A: In other words, he was not running production lines.
     Q. Right.
     A: Correct.
     Q: And he wasn’t purchasing for production lines?
     A: I don’t believe he was doing that much of it, no. No.

                                       -13-
contracts.15

       It is also clear that Burrell’s duties at Dr. Pepper as a

Manager and then as a stopgap Vice President of Purchasing gave him

significant purchasing experience by the time Koester was hired.

A reasonable jury would be entitled to reject Dr. Pepper’s efforts

to minimize Burrell’s responsibilities from May 2002 until February

2003    as   not   comprising     significant   or   relevant   purchasing

experience.    Taszarek explained that it was the ultimate duty of

the Vice President of Purchasing and his staff to “collect[] all

the information so that the CEO can make the appropriate decision”

on purchasing contracts.        Taszarek stated that Burrell excelled in

exactly this function, i.e., summarizing different proposals and

contacting the suppliers on behalf of CEO Turner.16             He further

conceded that Koester had never done the type of information

gathering that the CEO of a company relies on in order to negotiate


       15
      Q: All right. But the logistics person hasn’t negotiated
the contracts?
     A: No, huh-uh.
     Q: And purchased it to make sure that it’s available to be
there, correct?
     A: No. He orders it. The logistics person orders the
product. The price of the product was negotiated somewhere else.

       16
      Taszarek stated in his deposition: “[W]hen Penny left,
then we got into an end-of-year renegotiation, you know,
renegotiation of some major contracts we had. Darry did a great
job of picking up the slack, and these negotiations are –
obviously, all the decisions are made by the CEO, but he needs a
lot of input on – as far as summarizing different proposals and
contact with the suppliers, and I remember he gave it a great
effort, and Mr. Turner was very pleased with his efforts.”

                                     -14-
contracts.   In addition, Burrell produced a memorandum he wrote to

Turner reporting on his activities during a several week period.

In the January 17, 2003 memo, Burrell described the results of

negotiations which he had conducted without Turner’s participation

and in which he and another Dr. Pepper employee decided to award

several business contracts.           Further, while taking issue with

certain aspects of Burrell’s performance, Koester’s performance

review of Burrell also indicates that Burrell was responsible for

“negotiating      with   suppliers”    and    for      “ensuring       [Dr.    Pepper

receives] the best combination of price, quality and service.”

      In   addition      to   evidence       on     Koester       and    Burrell’s

qualifications, Dr. Pepper’s rationale for its hiring decision is

also suspect because it has not remained the same.                       While Dr.

Pepper offers an explanation for the difference between the reason

for   promoting    Koester    over    Burrell     it    offered     to    the    EEOC

(“purchasing   experience”)     and    the    one      offered    to    this    court

(“purchasing experience in the bottling industry”), its brief does

not attempt to explain how either explanation is consistent with

its arguments to the district court which were framed in terms of

Burrell’s insufficient “bottling” experience.                    This unexplained

inconsistency was further evidence from which a jury could infer

that Dr. Pepper’s proffered rationale is pretextual.17

      17
      See Gee, 289 F.3d at 347-48 (determining summary judgment
was improper where the plaintiff produced evidence that the
employer's explanation for her non-selection had been
inconsistent).

                                      -15-
     Given     the   summary   judgment    evidence     discussed   above,    a

reasonable jury could conclude that Koester’s experience did not

exceed Burrell’s and that Dr. Pepper was aware of this fact.                 It

follows that a reasonable factfinder could conclude that Dr.

Pepper’s asserted justification for hiring Koester (his greater

purchasing experience in the bottling industry) is “unworthy of

credence” and a pretext for intentional discrimination.18

     As the Supreme Court explained in Reeves v. Sanderson Plumbing

Prods., Inc.:

     the trier of fact can reasonably infer from the falsity
     of the explanation that the employer is dissembling to
     cover up a discriminatory purpose. Such an inference is
     consistent with the general principle of evidence law
     that the factfinder is entitled to consider a party’s
     dishonesty about a material fact as affirmative evidence
     of guilt.19

The Reeves Court went on to state that there may be rare instances

in which a showing of pretext is insufficient to sustain a jury’s

finding   on    discrimination,     such    as   when:     (1)   the   record

conclusively reveals some other, nondiscriminatory reason for the

employer’s decision, or (2) the plaintiff creates only a weak issue

of fact as to whether the employer’s reason was untrue, and there

is   abundant    uncontroverted     evidence     that    no   discrimination

     18
      Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147, 120 S.Ct. 2097, 2108, 147 L.Ed.2d 105 (2000) (“Proof that
the defendant's explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.”).
     19
      Reeves, 530 U.S. at 147 (internal quotation marks and
citations omitted).

                                    -16-
occurred.20

     Dr. Pepper offers no other nondiscriminatory reason for the

employment decision nor does the record present uncontroverted

evidence that no discrimination occurred.          Accordingly, on this

record, a jury could conclude that Dr. Pepper’s proffered reason

for failing to promote Burrell is false and that intentional

discrimination     was   the   real   motive.21   Summary   judgment   was

therefore inappropriate.22

                                       B.

     Burrell also asserts that his termination was either the

product of discrimination on account of his race or retaliation for

his complaints of racial discrimination.

     Assuming Burrell can establish a prima facie case on both

counts, Burrell acknowledges that Dr. Pepper has come forth with a

legitimate, non-discriminatory reason for his termination: his on-

the-job insubordination.        As stated above, Dr. Pepper cited the

following specific instances of insubordination: (1) Burrell's

failure to turn in weekly reports and vacation requests to Koester;

     20
          Id. at 148.
     21
      See Laxton, 333 F.3d at 585 (where plaintiff had made out
both a prima facie case and a sufficient showing of pretext, and
where none of the rare circumstances identified in Reeves
applied, plaintiff had produced sufficient evidence to withstand
a motion for judgment as a matter of law).

     22
      Because we resolve Burrell's claim on the above ground, we
need not consider whether Burrell established that he was
"clearly more qualified."

                                      -17-
(2)    Burrell's   complaints    about   Koester's    qualifications;      (3)

Burrell's refusal to research possible cost and supplier reductions

in regards to a company project; and (4) Burrell's written response

to Koester's evaluation. The record reflects that the dispute over

the weekly reports and the unchallenged allegation that Burrell

would often complain about Koester's qualifications were issues

which probably contributed to the strained relationship between the

men.     However, given that Burrell was fired on the day his

evaluation response was delivered, the parties focus primarily on

Burrell’s response to Koester’s negative evaluation as the primary

reason for the termination.

       Burrell asserts that Dr. Pepper’s decision to terminate his

employment based on the evaluation response is a pretext for

discriminatory intent, however, he offers little in the way of

record evidence in support of this view.            As detailed above, the

performance evaluation response authored by Burrell begins by

characterizing Koester's initial evaluation as an inappropriate and

unprofessional attack and questions Koester's ability to give an

accurate evaluation.       The    response   goes    on   to   attribute   the

negative review to Koester’s “biased perception” of Burrell’s on-

the-job performance.      Throughout his response, Burrell accuses

Koester of being ill informed and unqualified to critique his

performance.

       While the response includes significant supporting facts and

examples, Burrell made clear his lack of respect for Koester's

                                    -18-
authority, asserted no responsibility for their bad relationship,

and made no provisions for future changes.                  Both the evaluation and

the response demonstrate the failed working relationship between

Burrell and Koester.             Notably, neither document contains any

mention of a racial or retaliatory basis for their disagreements.

Burrell's brief unpersuasively suggests that Dr. Pepper set up

Burrell with a false and negative performance review in order to

provide a reason to terminate him. However, he asserts no specific

facts     to   support    this   allegation       and   there    was   unchallenged

deposition testimony from Koester that it was Burrell who had

requested a formal written review.

     On this record, we agree with the district court that no

reasonable      jury     could   infer     that    racial       discrimination     or

retaliatory      intent    was   the   reason     or    a    motivating   factor   in

Burrell’s termination.23

                                         IV.

     For these reasons, we AFFIRM the district court’s order

dismissing Burrell’s claim based on discriminatory and retaliatory

discharge.       However, we VACATE the order granting Dr. Pepper

summary judgment on Burrell’s discriminatory failure to promote


     23
      Cf. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337
(5th Cir. 2007) (summary judgment on Title VII claim appropriate
where employee had failed to rebut employer’s insubordination
rationale based, in part, on employee’s repeated criticisms of
direct supervisor). No “clearly better qualified” analysis is
necessary on Burrell’s termination claims because he did not make
any such argument in his brief.

                                         -19-
claim and REMAND the case to the district court for further

proceedings consistent with this opinion.

AFFIRMED IN PART.

VACATED IN PART.

REMANDED.




                              -20-
