     Case: 18-20024      Document: 00514562564         Page: 1    Date Filed: 07/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-20024                   United States Court of Appeals

                                  Summary Calendar
                                                                            Fifth Circuit

                                                                          FILED
                                                                      July 19, 2018

OSCAR E. CANAS,                                                      Lyle W. Cayce
                                                                          Clerk
              Plaintiff - Appellant

v.

NATIONAL OILWELL VARCO, L.P.,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-1864


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
       Oscar Canas, a native of El Salvador, worked for National Oilwell Varco
(“NOV”) as a machine shop supervisor from June 9, 2014, until he was demoted
to a machinist on March 9, 2015. On June 29, 2015, Canas brought this action
alleging that his demotion resulted from discrimination on the basis of his
national origin and retaliation for filing a complaint with management. On



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20024
December 17, 2017, the district court granted summary judgment in favor of
NOV on both claims. We now affirm.
                                              I.
       Canas claims that he was demoted as a result of national origin
discrimination in violation of Title VII. 1 To establish a prima facie case of
national origin discrimination, a plaintiff must ordinarily demonstrate 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.” 2
       The first three factors are not at issue in this appeal, so we focus on the
fourth. Canas claims that he was treated less favorably than the other
overnight machine shop supervisor, a non-Salvadoran man named Joe
Keating. After Canas was demoted, Keating assumed his supervisory
responsibilities without additional pay.
       The district court concluded that Keating was not “an employee in a
similar situation as Canas, who was treated more favorably than Canas.” We
agree. The record does not show that Canas and Keating were “similarly
situated employees.” Specifically, the record does not show that Canas and
Keating had “essentially comparable violation histories.” 3 During his tenure
as a supervisor, Canas was the subject of multiple employee complaints for




       1  In the district court, Canas alleged two adverse employment actions: (1) his demotion
from supervisor to machinist and (2) NOV’s failure to properly investigate the incident that
led to his demotion. On appeal, Canas focuses solely on his demotion.
        2 Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
        3 Id. at 260. This is not to say that the comparator must have “the identical number

of identical infractions,” but that the infractions should typically be of “comparable
seriousness.” Id. at 261.
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                                        No. 18-20024
harassment and unwanted physical contact. Where the “difference between the
plaintiff’s conduct and that of those alleged to be similarly situated accounts
for the difference in treatment received from the employer, the employees are
not similarly situated for purposes of an employment discrimination
analysis.” 4 Because Canas has not provided any evidence that Keating had a
similar disciplinary record, he has not shown that they are similarly situated.
       On appeal, Canas also argues that the district court’s reliance on the
fourth factor was “overly mechanical and limited,” and that he should not have
to provide a comparator to make out a prima facie case of discrimination. 5
Canas is correct that “[w]hile proof of all four of the McDonnell Douglas criteria
will establish a circumstantial prima facie case, such proof is not the exclusive
means of establishing a plaintiff’s preliminary burdens.” 6 We have held that
when a plaintiff cannot identify a similarly situated employee, he may still be
able to establish a prima facie case by proving “that it was ‘more likely than
not that the employer’s actions were based on illegal discriminatory criteria.’” 7
       Even so, Canas points to nothing in the record to meet that burden. In
his response to the motion to dismiss, Canas claimed that management “began
to engage in a pattern of planning and fabricating pretextual reasons to
criticize [his] performance and actions” and “embarked on a course of action
designed and intended to create a justification for disciplinary action against
defendant,” but he did not point to any support for his claims in the record. 8


       4  Id. at 260 (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001))
(internal quotation marks omitted).
        5 Blue Br. at 10.
        6 Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214, 1219 (5th Cir. 1987). See

also Byrd v. Roadway Exp., Inc., 687 F.2d 85, 86 (5th Cir. 1982) (“[A]s this Court and the
Supreme Court have repeatedly pointed out, no single formulation of the prima facie evidence
test may be fairly expected to capture the many guises in which discrimination may appear.”).
        7 Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 344 (5th Cir. 1990) (quoting

Jatoi, 807 F.2d at 1220).
        8 ROA.552.

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      Because Canas has not established a prima facie case of national origin
discrimination, we affirm the district court’s grant of summary judgment.
                                            II.
      Canas also claims that he was demoted in retaliation for filing a
complaint with upper management. To establish a prima facie case of
retaliation, Canas must show that: (1) he participated in an activity protected
by Title VII; (2) his employer took an adverse employment action against him;
and (3) a causal connection exists between the protected activity and the
materially adverse action. 9
      Canas has not met this burden. As the district court noted, Canas
claimed that he was “demoted because he filed complaints about safety
violations of his fellow employees.” But complaining about safety violations is
not protected activity under Title VII. 10 On appeal, Canas claims that he also
complained about national origin discrimination prior to his demotion;
however, that claim is not supported by the record. Canas was demoted on
March 9, 2015. In his deposition, he stated that he reported that he had been
the victim of national origin discrimination on March 16, 2015. 11 He said that
was the first time he mentioned discrimination based on his national origin. 12
Later in the deposition, Canas said that he mentioned the discrimination “a
couple of times” to his manager, but he did not specify when those
conversations occurred. 13




      9  Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008).
      10  See, e.g., Green v. Trimac Transportation S., Inc., No. 1:10-cv-444, 2012 WL
12893294, at *16 (E.D. Tex. Sept. 12, 2012), aff’d sub nom. Green v. Trimac Transpo., Inc.,
546 F. App’x 333 (5th Cir. 2013) (per curiam) (unpublished).
       11 ROA.460.
       12 ROA.461.
       13 ROA.540.

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                                     No. 18-20024
      We see no evidence in the record to support Canas’s claim that he
complained about national origin discrimination before his demotion, or that
otherwise establishes a causal connection between any protected activity and
his demotion. 14 We thus affirm the district court’s grant of summary judgment.




       14In fact, Canas’s own statements during his deposition posit that he was retaliated
against for reporting safety violations; he said that “was complaining about safety; and
because [he] was complaining, they retaliated.” ROA.541.
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