                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             October 13, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20924



LORENZO G. BAKER,

                                               Plaintiff - Appellant
versus


RANDSTAD NORTH AMERICA, L.P.,

                                                Defendant - Appellee


          Appeal from the United States District Court
               for the Southern District of Texas
                     (No. 4:02-CV-H-02-4870)



Before HIGGINBOTHAM, WIENER & DENNIS, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Lorenzo Baker appeals the district court’s

order granting summary judgment to Defendant-Appellee, Randstad

North America, on his employment discrimination claim.            Baker

contends that he successfully established a prima facie case of

race discrimination and that a genuine issue of material fact

exists as to whether Randstad’s articulated reason for terminating

him was a pretext for race discrimination.

                     I. FACTS AND PROCEEDINGS


     *
      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this opinion should not be published and is not precedent except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.
       Randstad is a staffing company that places individuals in

temporary     and   permanent     positions    in   a   variety       of   sectors,

including light industrial and office support.                  Randstad entered

the    Houston   market   in     2000   and   hired     Baker    as    a   Business

Development Manager (“BDM”) that spring.            BDMs are responsible for

generating new business for Randstad.            Randstad requires each BDM

to make at least 75 contacts per week with potential clients and

have ten meetings per week with decision makers at potential

clients’ businesses.       Randstad also expects BDMs to secure new

accounts on a consistent, weekly basis.               Once the BDM closes the

initial deal, Randstad agents assume responsibility for client

relationship and work with the client to fill personnel vacancies

as they occur.       Baker’s initial supervisor was Regional Market

Manager Alyson Blake.       In the fall of 2000, Ron Griffin replaced

her.

       Within his first two months at Randstad, Baker secured Reliant

Energy as a client.        The Reliant account generated substantial

revenue, and Baker received special recognition for being the top

revenue producing BDM in the Houston market as a result of it.

Ultimately, however, Randstad had to drop the account in early 2001

because it was not profitable. Specifically, it cost Randstad money

to    place   employees   with    Reliant     because    of   various      workers’

compensation claims that arose out of Reliant placements.

       Securing the Reliant account turned out to be the high point

in Baker’s tenure at Randstad.          Notably, although Baker typically

                                        2
made a qualifying number of contacts each week,1 he admittedly

never met the requirement of ten meetings per week with the

potential clients’ decision makers.          In the two months before he

was fired, Baker averaged approximately four meetings per week.

Baker also failed to secure new accounts on a consistent basis.

During his 11 months with Randstad, Baker secured only nine new

client accounts; Randstad expected Baker to secure more than three

times that many new accounts in the same period.

      In the fall of 2000, Randstad entered a period of financial

decline and laid off 250 employees nationwide.                  In December,

Randstad instructed the Regional Market Managers to terminate the

employees who were their lowest performers.               Although Baker was

near the bottom of the list on the basis of his activity levels,

his supervisor, Griffin, decided to keep Baker on the staff and

monitor his progress over the following three months.               Ultimately,

Randstad    laid   off   eight   employees   in     the   Houston    market   in

December.    The only BDM who Griffin selected for layoff at this

time was Heather Barladge, a white female.                 Griffin selected

Barladge because she was unable to meet her activity requirements.

Of   the   total   number   of   employees   that    Randstad   laid    off   in

December, more than half were white.

      At the end of the first quarter of 2001, Randstad again


      1
      The evidence shows that Baker failed to meet this
requirement at least once. During the week of February 23, 2001,
Baker made only 48 contacts.

                                      3
initiated a nationwide reduction in force, this time eliminating

approximately 200 employees.    As with the December 2000 layoffs,

Randstad instructed its Regional Market Managers to lay off their

lowest performers.   In evaluating the BDMs under his supervision,

Griffin placed special emphasis on their abilities to secure new

accounts. If a BDM was underperforming in that area, Griffin would

evaluate the BDM’s activity levels, i.e., the number of contacts

that the BDM made each week and the number of client meetings that

the BDM had each week. Griffin also considered productivity, which

includes revenue, gross margin, and profitability.     By April of

2001, Baker had failed to improve his performance, and he was the

lowest performing BDM in the Houston market.   Accordingly, Griffin

selected him for termination.        Baker was the only BDM in the

Houston market that Randstad laid off at that time.

     Baker filed discrimination charges against Randstad with the

EEOC.   The EEOC repeatedly requested documentation from Randstad

regarding the activity levels of the retained BDMs.      Randstad,

however, produced only the activity reports for Baker and Melissa

Tennison, a Hispanic employee, for the two-month period preceding

Baker’s termination. These reports show that Tennison secured more

accounts and had a much higher activity level than Baker during

that period. After investigation, the EEOC issued Baker a right to

sue letter.   He then sued Randstad under Title VII and 42 U.S.C. §

1981, alleging that Randstad terminated him because he is black.

     Randstad filed a motion for summary judgment, asserting that

                                 4
there is no evidence that its articulated nondiscriminatory reason

for terminating Baker was a pretext for race discrimination.           The

district court granted summary judgment to Randstad on two bases.

First, the district court ruled that Baker had failed to establish

a prima facie case of race discrimination because he submitted no

evidence that he was replaced by someone outside the protected

group.   Second,   the   district   court   concluded   that   there   was

insufficient evidence to create a genuine issue of material fact as

to whether Randstad’s articulated reason for terminating Baker was

pretextual. Baker appeals the district court’s grant of Randstad’s

summary judgement motion, arguing that (1) he established a prima

facie case of race discrimination, and (2) an issue of fact exists

as to whether Randstad’s reason for terminating him is a pretext

for race discrimination.

     We have jurisdiction over Baker’s appeal of the district

court’s judgment under 28 U.S.C. §§ 1331 and 1291.

                            II. ANALYSIS

A.   Standard of Review

     We review the district court’s grant of summary judgment in

favor of Randstad de novo.2     We shall affirm the district court

when there is no genuine issue of material fact and the moving




     2
      Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th
Cir. 2005).

                                    5
party is entitled to summary judgment as a matter of law.3       We

consider the evidence in the light most favorable to the non-

movant, but he must point to evidence that shows that there is a

genuine issue of fact for trial.4

B.   Legal Standard

     Both Title VII and § 1981 prohibit employers from taking

adverse employment actions against employees on the basis of race.5

As there is no direct evidence of discrimination in this case, we

evaluate Baker’s claims under the burden-shifting framework of

McDonnell Douglas Corp. v. Green.6   First, Baker must establish a

prima facie case of race discrimination.      This means that Baker

must demonstrate that (1) he is a member of a protected class, (2)

he was qualified for the job, (3) he suffered an adverse employment

action, and (4) similarly situated employees outside the protected

group were treated more favorably than he.7   Once Baker establishes

a prima facie case of race discrimination, the burden shifts to

Randstad to articulate a legitimate, non-discriminatory reason for



     3
      Id.
     4
      Id.
     5
      42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a).
     6
      411 U.S. 792, 802 (1981). See also Felton v. Polles, 315
F.3d 470, 483-84 (5th Cir. 2002)(noting that when a plaintiff
brings Title VII and § 1981 claims as parallel causes of action,
the claims require the same proof to establish liability).
     7
      Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir.
2005).

                                 6
terminating Baker.   If Randstad does so, Baker has the ultimate

burden of proving that Randstad’s articulated reason is a pretext

for race discrimination.8

     On appeal, Randstad has waived any argument that Baker did not

establish his prima facie case.9       Accordingly, we address only the

issue whether there was sufficient evidence to establish that

Randstad’s articulated reason for terminating Barker was a pretext

for race discrimination.    Baker contends that (1) the absence of

documentary evidence regarding the activity levels of most of the

other BDMs who were not fired when he was, invokes the spoliation

doctrine and alone establishes an issue of fact as to whether

Randstad’s articulated reason for terminating Baker was pretextual;

(2) the evidence shows that Baker was a better employee than both

Melissa Tennison, a female Hispanic BDM, and Stephen Horton, a

white male BDM; and (3) Randstad engaged in a pattern of laying off

black employees.

C.   Misplaced Documentary Evidence and Spoliation


     8
      Id.
     9
      Randstad waives the issue because in its summary judgment
motion it assumed for the sake of argument that Baker had
established his prima facie case.
     Furthermore, the district court erred when it ruled that
Baker failed to establish his prima facie case for failing to
submit evidence that he was replaced by someone outside the
protected class. A plaintiff in a reduction-in-force case is
generally not replaced at all, and thus to establish his prima
facie case, he need not prove that he was replaced by someone
outside the protected class. See Palasota v. Haggar Clothing
Co., 342 F.3d 539, 576 (5th Cir. 2003).

                                   7
       Baker     asserts    that    Randstad’s        failure   to   produce    full

documentation in support of its decision to terminate Baker invokes

the spoliation doctrine and justifies a presumption that the

withheld evidence would have been unfavorable to Randstad.                     Thus,

argues Baker, this non-production alone raises an issue of fact as

to whether Randstad’s reason for terminating him was pretextual and

exempts him from an adverse summary judgment.                   Randstad counters

that it simply misplaced the relevant documents.

       At the outset, Baker cites no authority for the proposition

that    misplaced      or   un-produced          documents   establish   a   per   se

presumption       of   pretext     in   an   employment      discrimination    case.

Furthermore, spoliation is a specific doctrine that requires the

party invoking it to show, inter alia, that his adversary destroyed

or misplaced the evidence in bad faith.10                     Here, Baker neither

specifically alleged that Randstad misplaced the documents in bad

faith nor moved the district court to determine whether Randstad

misplaced the documents in bad faith.11                In fact, Baker never even

moved the district court to compel Randstad to produce the missing

documents. As Baker bears the ultimate burden of proving pretext,

the employer’s destruction or withholding of the missing documents


       10
            Caparotta v. Entergy Corp., 168 F.3d 754, 756 (5th Cir.
1999).
       11
      Compare id. at 755 (noting that the district court held a
hearing to determine whether the defendant destroyed relevant
evidence in bad faith to ultimately determine whether the
spoliation doctrine applied).

                                             8
could very well have damaged him.12         Nevertheless, the summary

judgment record on appeal is devoid of evidence addressing whether

Randstad misplaced, withheld, or destroyed the documents in bad

faith.    Therefore, our hands are tied: As there is no evidence of

bad faith, Baker’s spoliation argument fails.

D.   Other Evidence

     Baker contends that, even absent the aforesaid records, he

presented sufficient evidence to create a genuine issue of material

fact as to whether Randstad’s reason for terminating him was

pretextual. Specifically, Baker points to evidence that he was the

highest revenue generator for Randstad in the Houston market.

Baker also offers evidence that other BDMs whom Randstad did not

fire never secured any accounts at all.

     1.     Baker’s Revenue

     Randstad does not dispute that Baker was the highest revenue

generator in the Houston market.       This was because of the Reliant

account, which Baker secured at the beginning of his employment

with Randstad.     Significantly, however, revenue was neither the

only nor the most important factor that Griffin considered in

deciding    whom   to   fire.   Instead,    Griffin   focused   on   both

productivity and activity levels.       Griffin explained that a high

revenue generator would be a proper candidate for termination if he


     12
      See id. at 757 (noting that the plaintiff in an employment
discrimination suit bears the ultimate burden of proof and that
the destruction of documents could unfairly harm him).

                                   9
was “living off an account [he] had closed six months before” and

his activity levels were not up to par.   As noted, Griffin reviewed

the BDMs’ activity reports and, in so doing, paid special attention

to the BDMs’ activity levels and to new accounts that the BDMs

generated.   Furthermore, Griffin focused on the months immediately

preceding the April 2001 reduction in force.

     Griffin chose to lay off Baker because he failed to bring in

new business on a consistent, weekly basis and his activity levels

were the lowest in the region: Baker was never able to secure ten

meetings with decision makers in any week.        Moreover, despite

Baker’s revenue generation, his overall productivity levels are not

stellar under Griffin’s analysis.      This is because Baker was

continuing to “live off” the Reliant account.        Notably, Baker

closed the Reliant account more than eight months before his

termination, and that particular account had negative profitability

despite its gross revenue generation because of the high costs and

expenses that Randstad incurred in staffing Reliant.    Ultimately,

Baker’s argument regarding Griffin’s evaluation of his performance

in light of his high revenue generation does not demonstrate that

Randstad fired Baker because of his race.13       That argument is

insufficient to impugn Randstad’s articulated, nondiscriminatory

reason for terminating Baker.


     13
      Sandstad v. CB Richard Ellis, 309 F.3d 893, 899 (5th Cir.
2002)(“Merely disputing [the employer’s] assessment of [the
employee’s] performance will not create an issue of fact.”).

                                 10
       2.      Tennison’s Performance

       Randstad did produce Tennison’s activity reports for the two-

month period preceding Baker’s termination.                These reports show

that    she    met   or   exceeded    Randstad’s   requirements      for   weekly

contacts and meetings and that she secured seven new accounts

during that period.          In comparison, Baker’s activity reports show

that he never met the weekly meetings requirement and secured only

two new accounts during that period.

       Baker      proffers    the    declaration   of    Kimberly    Sanders   to

contradict Tennison’s record.            Specifically, Sanders stated that

Tennison had not sold a single account from the time Randstad hired

her through March of 2001.           Construing Sanders’s testimony in the

light most favorable to Baker, i.e., assuming that Randstad’s

activity reports for Tennison are erroneous, still does not create

an issue of fact.         This is because, even if the reports are proved

to be erroneous, it is undisputed that Griffin relied on them in

making      the    reduction-in-force      determinations,     and    Tennison’s

purportedly erroneous activity reports nevertheless show her to be

a more productive employee than Baker.                  “The question is not

whether an employer made an erroneous decision; it is whether the

decision was made with discriminatory motive.                Even an incorrect

belief that an employee’s performance is inadequate constitutes a

legitimate, nondiscriminatory reason.”14                Accordingly, Sanders’s

       14
      Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th
Cir. 1995)(internal quotations and citations omitted).

                                         11
statement fails to raise an issue of fact as to whether Randstad’s

articulated reason for terminating Baker was a pretext for race

discrimination.

      3.   Horton’s Record

      Baker contends that Randstad should have laid off Horton

instead of him because Horton had not secured any accounts from the

time he was hired by Randstad in March of 2001 until the time that

Baker was terminated in April of 2001.        Assuming this to be true,

the evidence in the record is undisputed that (1) Baker secured no

new accounts during the same period, (2) Baker failed to fulfill

his activity requirements, and (3) unlike Baker, Horton met his

activity requirements in the weeks preceding Baker’s termination.

Accordingly, Baker’s testimony that Horton failed to secure any new

accounts before his termination is insufficient to raise an issue

of fact as to whether Randstad’s articulated reason for terminating

Baker was a pretext for race discrimination.

E.    Pattern of Terminating Black Employees

      Finally, Baker insists that Randstad engaged in a pattern of

terminating black employees, and that this pattern raises an issue

of fact as to whether Randstad’s articulated reason for terminating

Baker is pretextual. Although statistical evidence can be probative

of   pretext,   it   is   extraordinarily   rare   that   raw   numbers   can




                                    12
insulate a plaintiff from summary judgment.15                       Indeed, “[t]he

probative value of statistical evidence ultimately depends on all

the   surrounding         facts,   circumstances,        and    other    evidence   of

discrimination.”16

      For openers, Baker fails to show that a distinct pattern of

laying      off   black    employees    relative    to    white    employees      even

existed.       In the first round of lay offs late in 2000, Randstad

terminated eight employees in the Houston market: Five were white;

three were black.         Of the BDMs terminated in this initial round of

layoffs, only one in the Houston market was selected by Griffin,

and she was white.           Baker also asserts that Randstad terminated

four black BDMs (including himself) and six black agents in the

Houston market in 2001.            There is also evidence that Randstad laid

off at least one white BDM in the Houston market in 2001 for low

activity levels, but there is no evidence in the record as to the

total number of white employees Randstad laid off at that time.                     We

cannot conclude from the evidence before us that Randstad engaged

in a pattern of targeting black employees for termination.

      Moreover,      even    if    Baker’s     numbers    had    shown    a   possible

pattern, his argument still fails.                This is because statistical


      15
      E.E.O.C. v. Texas Instruments, Inc., 100 F.3d 1173, 1185-
86 (5th Cir. 1996)(affirming district court’s order granting
summary judgment to employer and rejecting, inter alia, the
plaintiff’s contention that statistical evidence was probative of
pretext).
      16
           Id. at 1185.

                                          13
presentations that do not include analyses of the facts surrounding

the   circumstances       of   the     individual     employees       at     issue    are

“impotent, without more, to rebut” an employer’s articulated,

nondiscriminatory          reason      for        terminating        an     employee.17

Significantly, Baker concedes that nothing more than his subjective

belief that black employees were laid off in disproportionate

numbers supports his pattern-of-discrimination argument.                         Baker

admittedly offers no evidence or analysis apart from the bare

numbers      to   indicate     that    Randstad     engaged     in    a     pattern   of

terminating black employees because of their race.18                      Accordingly,

Baker’s pattern-of-discrimination argument fails.                    In this regard,

we note in passing that the undisputed evidence in the record

before us shows that Randstad had legitimate, nondiscriminatory

reasons for terminating the black BDMs in 2001.                           Specifically,

Randstad fired two black BDMs for violating company policy, laid

off one black BDM for poor performance, and the fourth black BDM

voluntarily resigned.

                                 III. CONCLUSION

      Baker       fails   to   point    to    any   summary     judgment      evidence

sufficient to create an issue of material fact whether Randstad’s

      17
           Id. at 1185.
      18
      In his deposition, counsel for Randstad asked Baker if
there is any “firm evidence, firm facts, or... information” that
Baker could point to in order to show that Randstad terminated
black employees because of their race. Baker admitted that the
only evidence he could point to was “the number of [black]
people” that Randstad terminated.

                                             14
articulated reason for terminating him was a pretext for race

discrimination.   Absent that, Randstad is entitled to summary

judgment as a matter of law.        The district court’s grant of

Randstad’s motion for summary judgment is

AFFIRMED.




                               15
