              IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT
                                              _______________

                                                m 00-51252
                                              _______________



                                        WALTER G. BROWN, JR.,

                                                                Plaintiff-Appellant,

                                                   VERSUS

                                 OUTSOURCE SPECIALIST, INC.;
                           CITGO PETROLEUM PIPELINE CORPORATION,

                                                                Defendants-Appellees.


                                       _________________________

                               Appeal from the United States District Court
                                    for the Western District of Texas
                                             (A-00-CV-29)
                                     _________________________
                                           September 21, 2001



Before JONES, SMITH, and                                maintenance and delivery services for Citgo
  EMILIO M. GARZA, Circuit Judges.                      Products Pipeline Company (“Citgo”) while
                                                        Citgo phased in an automated system. During
PER CURIAM:*                                            his tenure from 1994 to 1999, Brown, who is
                                                        black, believed OSI and Citgo did not give him
  Outsource Specialist, Inc. (“OSI”), hired             the same privileges as his white co-workers, so
Walter Brown on a temporary basis to perform            he sued. The district court granted summary
                                                        judgment for OSI and Citgo on the basis that
        *
                                                        Brown had failed to establish either a prima
          Pursuant to 5TH CIR. R. 47.5, the court has
                                                        facie case or pretext for discrimination.
determined that this opinion should not be published
and is not precedent except under the limited           Finding no error, we affirm.
circumstances set forth in 5TH CIR. R. 47.5.4.
                       I.                              v. Catrett, 477 U.S. 317, 322-23 (1986).
    Brown provided pipeline operator and de-
livery services. In 1995, he applied for a me-                               III.
chanic position, but Citgo filled the opening             We have reviewed the record and conclude
with a white applicant. Two months before              that the district court correctly entered
Brown was terminated, he filed a complaint             summary judgment. To establish a prima facie
with the Equal Employment Opportunity                  case of discrimination with indirect evidence of
Commission (“EEOC”) and the Texas                      employer animus, a plaintiff must show that he
Commission on Human Rights (“TCHR”),                   (1) is a member of a protected class; (2) is
alleging discrimination on the basis of race           qualified for the position; (3) suffered an
because he had to arrive earlier and document          adverse employment action; and (4) was re-
his work time in more detail than did white            placed by a member of a non-protected class.
employees. After receiving a right-to-sue              See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
letter from the EEOC, Brown sued OSI and               502, 506 (1993).
Citgo under title VII of the Civil Rights Act of
1964, claiming discrimination and retaliation.            Brown’s various complaints regarding his
As further evidence of unequal treatment,              work conditions are not actionable under title
Brown claimed OSI and Citgo required him to            VII. Although his termination does constitute
work during holidays and family events, forced         an adverse employment action, Brown has not
him to mow the lawn with a mower that hurt             established a prima facie case, because he has
his back, provided him with a truck and cell           not demonstrated that non-protected class
phone later than it provided the same to white         members were treated differently. When OSI
employees, and verbally threatened his job.            and Citgo downsized, they laid off thirteen
Citgo began laying off workers in 1997 but did         white workers before Brown and had
not terminate Brown until March 1999. He               terminated all workers three months later.
alleges that white employees were retained             Even if he had a prima facie case, an across-
longer or were allowed to leave their positions        the-board layoff is a legitimate, non-
earlier with pay.                                      discriminatory reason for termination. See
                                                       EEOC v. Tex. Instruments Inc., 100 F.3d
                       II.                             1173, 1181 (5th Cir. 1996).
    We review a summary judgment de novo.
Boyd v. State Farm Ins. Cos., 158 F.3d 326,               On his failure-to-hire claim, Brown did es-
328 (5th Cir. 1998). A court may enter                 tablish a prima facie case, but he cannot pre-
summary judgment if the record, taken as a             vail without showing that he had superior
whole, “shows that there is no genuine issue as        qualifications. See EEOC v. La. Office of
to any material fact and that the moving party         Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir.
is entitled to a judgment as a matter of law.”         1995). Because he has not, he cannot
FED. R. CIV. P. 56(c). If a party “fails to make       establish that the defendants’ proffered rea-
a showing sufficient to establish the existence        son—that the other candidate was more quali-
of an element essential to that party’s case and       fied—was pretextual.
on which that party will bear the burden of
proof at trial,” rule 56(c) mandates summary
judgment for the opposing side. Celotex Corp.


                                                   2
                       IV.
    The defendants’ legitimate reason for
Brown’s termination defeats his retaliation
claim. To establish a prima facie case of re-
taliation under title VII, Brown must show
that (1) he engaged in protected activity;
(2) the defendants took adverse employment
action against him; and (3) a causal connection
exists between the protected activity and the
adverse employment action. See Mattern v.
Eastman Kodak Co., 104 F.3d 702, 705 (5th
Cir. 1997). Brown has made a prima facie
case of retaliation, because he filed TCHR and
EEOC complaints and was fired shortly
thereafter. To prevail, however, he must show
that his protected activity was the “but for”
cause. See Long v. Eastfield College, 88 F.3d
300, 304 n.4 (5th Cir. 1996). Brown has not
offered any additional evidence of a causal
connection between the filing and firing.

   AFFIRMED.




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