     Case: 11-31020     Document: 00511925236         Page: 1     Date Filed: 07/18/2012




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

                                                                            FILED
                                                                            July 18, 2012
                                     No. 11-31020
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CLARENCE ARCENEAUX

                                                   Plaintiff-Appellant,
v.

METROPOLITAN LIFE INSURANCE COMPANY

                                                   Defendant-Appellee.



                  Appeal from the United States District Court,
                Western District of Louisiana, Lafayette-Opelousas
                      Division Court Case No. 6:10-CV-649


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Clarence Arceneaux appeals the district court’s grant
of summary judgment on his Title VII employment discrimination claim.
Because nothing in the record shows that the reason given for his dismissal from
MetLife was a pretext for discrimination, we AFFIRM.
                                              I.
        In 2003, Arceneaux retired from his job at Metlife as a financial services
representative (“FSR”). However, he continued to work at MetLife by taking

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 11-31020

advantage of a program permitting some qualified FSRs to service old clients.
As a condition of his contract with MetLife, Arceneaux agreed to abide by the
company’s policy requiring a professional work environment.
      A few years after his retirement, in 2005 or 2006, Arceneaux overheard
some of his co-workers use the “N word.” Arceneaux complained to his
supervisor. MetLife did not terminate the employees involved, but there were no
further incidents.
      Then, in early 2008, John Favaloro took over as Managing Director of
Arceneaux’s office. Shortly after taking over, Favaloro held several meetings to
discuss MetLife’s policy of workplace professionalism. MetLife required its
employees to treat each other with dignity and respect. Arceneaux attended a
meeting with Favaloro and received a one-page document summarizing
MetLife’s policies.
      In June 2008, barely two months after Arceneaux’s meeting with Favaloro,
FSR Barbara Guidry called Arceneaux at his home. Guidry was hoping to help
Arceneaux’s son find a job at M.D. Anderson. In response, Arceneaux told
Guidry, “don’t you ever f—ing call my house.” While the conversation itself did
not extend beyond the confines of his home, Arceneaux did not keep it a secret.
Instead, while at work, he reenacted the conversation in front of several co-
workers. One shocked co-worker told him that he better apologize. Arceneaux
did not do so.
      In response to Arceneaux telling her to never “f—ing call my house,”
Guidry complained to Favaloro. Favaloro called in several employees to discuss
the incident. One, Judith Romero, later submitted a written complaint detailing
Arceneaux’s workplace reenactment of his conversation with Guidry. Romero
stated that Arceneaux’s vulgarity demonstrated a complete lack of respect for
the dignity of his co-workers, and risked that a nearby client could have
overheard. Favaloro confirmed Romero’s story with another FSR, Gerald Patin.

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                                  No. 11-31020

Ultimately, Favaloro determined that Arceneaux had acted unprofessionally. As
such, he terminated Arceneaux for violating MetLife’s policy of workplace
professionalism.
      Arceneaux filed a lawsuit alleging, among other things, that MetLife fired
him because of his race. MetLife countered that Arceneaux had violated its
policy of workplace professionalism. The district court agreed with MetLife and
granted summary judgment.
                                       II.
      Arceneaux argues that the district court erred in granting summary
judgment in favor of MetLife. We review a district court’s grant of summary
judgment de novo. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 991-92 (5th
Cir. 2005). Summary judgment is proper when there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
      Arceneaux asserts that MetLife fired him because of his race. To win his
race discrimination claim, Arceneaux must prove that he (1) is a member of a
protected class; (2) was qualified for his position; (3) was subject to an adverse
employment action; and (4) others similarly situated, but not in his protected
class, were treated more favorably. See McConnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Evidence establishing the prima facie case creates a
presumption of discrimination. Id. at 804; Wallace v. Methodist Hosp. System,
271 F.3d 212, 219-21 (5th Cir. 2001). To rebut this presumption, the employer
must give a legitimate reason for acting as it did. 271 F.3d at 219-21. If the
employer does, the plaintiff must produce sufficient evidence to show the
employer’s given reason was merely a pretext for discrimination. Id.
      Here, MetLife claims that it fired Arceneaux because he acted
unprofessionally by reenacting a conversation in which he told another



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                                  No. 11-31020

employee, “don’t you ever f—ing call my house.” Therefore, Arceneaux must
produce evidence that this reason was merely a pretext for discrimination.
      Arceneaux attempts to do so in two ways. First, he contends that the policy
of professionalism applied only to his behavior in the workplace. Because the
conversation with Guidry took place in his home, Arceneaux believes that
MetLife’s workplace policy could not have served as the basis of his termination.
Second, Arceneaux claims MetLife did not terminate similarly situated white
employees even after they engaged in equally unprofessional conduct.
      Arceneaux cannot succeed on his first argument. Arceneaux may be correct
that MetLife’s policy did not apply to him at home. However, MetLife did not fire
Arceneaux for his initial conversation with Guidry. Instead, MetLife fired
Arceneaux for reenacting that conversation at work. As such, Arceneaux has no
evidence that MetLife’s policy did not apply to him.
      Neither can Arceneaux succeed on his second argument. To demonstrate
that other employees were given preferential treatment in similar situations,
Arceneaux must provide evidence that those employees engaged in misconduct
under nearly identical circumstances. See, e.g., Wyvill v. United Companies Life
Ins. Co., 212 F.3d 296, 304 (5th Cir. 2000).
      Arceneaux has failed to do so. He asserts that MetLife did not fire the
employees who used the “N word” in 2005. However, that incident took place
several years prior to Arceneaux’s own misconduct. Moreover, those employees
served under a different supervisor. Unlike the 2005 employees, Arceneaux’s
misconduct took place barely two months after Favaloro’s meetings discussing
workplace professionalism. Given these significant differences, Arceneaux’s
position was not “nearly identical” to the 2005 employees. See Wyvill, 212 F.3d
at 302 (“employees who had different supervisors than the plaintiff . . . or whose
terminations were removed in time from the plaintiff's termination cannot be



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                                 No. 11-31020

probative of whether [race] was a determinative factor in the plaintiff's
discharge”).
      Finally, Arceneaux alleges that MetLife never disciplined a white
employee who used vulgarities on a regular basis. But, no evidence suggests that
anyone ever reported that employee to his supervisor. In contrast, several
employees reported Arceneaux to his supervisor. Because a supervisor must
know about misconduct in order to punish it, an unreported incident is not
“nearly identical” to a reported one. See Manaway v. Med. Ctr. of Se. Tex., 430
Fed. Appx. 317, 322-23 (5th Cir. 2011) (unpublished). As such, Arceneaux has
not produced evidence that MetLife treated similarly situated employees
differently than him.
      Arceneaux has no evidence that MetLife fired him because of his race.
There is no genuine dispute as to any material fact regarding discrimination,
and so the district court properly granted summary judgment.


AFFIRMED.




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