                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                       UNITED STATES COURT OF APPEALS
                                                                       September 1, 2004
                           for the Fifth Circuit
                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                  No. 04-20334
                                Summary Calendar



JERRY MURPHY,

                                                          Plaintiff-Appellant,


                                      VERSUS


METROPOLITAN TRANSIT AUTHORITY,


                                                           Defendant-Appellee.



             Appeal from the United States District Court
                  For the Southern District of Texas
                              03-CV-4804




Before DAVIS, SMITH and DENNIS, Circuit Judges,

PER CURIAM:*

     Jerry Murphy (“Murphy”), appearing pro se, challenges the

district     court’s    grant    of    summary     judgment    dismissing      his

employment     discrimination      suit       against   his   former   employer,

Metropolitan Transit Authority (“MTA”).                 We affirm the district


     *
     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this opinion should not be published and is not precedent except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.
                                          1
court    judgment    because    Murphy       has    not   rebutted   MTA’s   non-

discriminatory reason for termination.



                                       I.

       Murphy, a fifty-seven-year-old African American male, was

hired by MTA to work on a program designed to promote and organize

citizen-run shuttle van service for cooperating commuters, called

Rideshare.    Over the course of Murphy’s employment his performance

evaluations steadily declined, finally resulting in an overall

unsatisfactory review.        Because of his poor performance Murphy was

placed in a ninety day performance improvement plan which required

weekly reports to superiors of plans of action and progress.

Murphy was ultimately fired when he allegedly misled superiors of

the status of a particular commuter cooperative group, causing

inconvenience and losses for MTA.                  Murphy alleges that he was

fired, not for the stated reason, but because of his age and race.

       Murphy also applied for and was denied a promotion during his

tenure at MTA.       Although a more qualified candidate was chosen

instead of him, Murphy asserts that the failure to promote him was

also due to discrimination.

       Following his termination Murphy filed a complaint with the

EEOC alleging age and race discrimination.                   The complaint was

dismissed after an EEOC investigation, at which time Murphy filed

suit    in   Texas    state    court     again       alleging   race   and   age

discrimination in MTA’s failure to promote him and in terminating

                                         2
him.   MTA removed the case to federal court and the district court

granted the MTA’s motion for summary judgment.    Murphy now appeals

that judgment.



                                 II.

       We review a grant of summary judgment de novo applying the

same standards applying the same legal standards as the district

court in determining whether summary judgment was appropriate.

Hudson v. Forest Oil Corp., 372 F.3d 742, 744 (5th Cir.2004).

“Summary judgment is proper if . . . there is no genuine issue as

to any material fact that the moving party is entitled to judgment

as a matter of law.”    Young v. Equifax Credit Info. Servs., Inc.,

294 F.3d 631, 635 (5th Cir.2002).      “In determining if there is a

genuine issue of material fact, this court reviews the evidence in

the light most favorable to the non-moving party.”       Performance

Autoplex II Ltd. v. Mid-Continent Casualty Co., 322 F.3d 847, 853

(5th Cir.2003).    Summary judgment must be upheld when the record

provides a legal ground for the affirmance, regardless of whether

the district court utilized or disregarded that ground.          S&W

Enters., LLC, v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 537-38

(5th Cir.2003).

       MTA argues that Murphy failed to present a prima facie case.

For purposes of this appeal, however, we assume that Murphy did

present a prima facie case. Even assuming arguendo that Murphy has


                                  3
established a prima facie case, MTA has presented substantial

evidence   of    valid,    non-discriminatory      reasons    for    Murphy’s

termination which have not been sufficiently rebutted by Murphy.

See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981) (“[I]f the plaintiff succeeds in proving the prima facie

case, the burden shifts to the defendant ‘to articulate some

legitimate,      nondiscriminatory        reason    for     the     employee's

rejection.’”). Metropolitan submitted numerous e-mails and written

memoranda documenting problems with Murphy’s job performance over

the   course    of   his   two-year   employment.         Every   performance

evaluation and nearly every correspondence in the record indicates

Murphy’s deficiency.2      Management finally terminated Murphy after

      2
     Numerous comments contained in Murphy’s August 11, 2002
evaluation demonstrate his failings at work:

      Jerry has failed to follow management directives in
      performance of his duties, choosing to continue to
      pursue unproductive avenues rather than proven
      activities he was directed to use. Jerry has made
      minimal contributions to date to the department
      objective of having 300 METROVans by the end of the
      year. He has formed one van to date this year, falling
      short of the planned goal of twelve vans a year for
      fiscal 2002.

R. 374

      In June, Jerry was given a list of over thirty
      companies that should have been researched and
      contacted. Some have yet to be researched and
      contacted. Jerry has made the decision to continue
      working with El Paso Energy for vanpool opportunities
      in spite of the fact they have excellent bus service .
      . . along with plentiful parking . . . . Jerry made
      the decision this spring to send out a press release
      that was not approved as required and continued some
                                      4
the dissolution of a van pool group that Murphy organized; Murphy

failed to provide prompt notice of the dissolution to management

purportedly causing costs and significant inconvenience.              These

reasons are sufficient to satisfy MTA’s burden of demonstrating

non-discriminatory reasons for Murphy’s termination.

      Given the legitimate reasons for Murphy’s termination, which

are strongly supported by the summary judgment evidence, the burden

of   proof   shifts   to   Murphy   to   demonstrate   that   MTA’s    non-

discriminatory reasoning was pretextual and that discrimination was

the actual basis for the adverse employment action.           Roberson v.

Alltel Information Servs., 373 F.3d 647, 651 (5th Cir. 2004).            To

carry this burden Murphy has made conclusory statements that the

reason for termination was a sham because others were not fired for

similar behavior and because the vanpool dissolution situation was



      activities against directions while keeping the
      activity hidden from management. Jerry has elected to
      continue use of presentation and communication
      approaches that have not been successful in the past
      two years which he has been instructed to abandon.

R. 374-73.

      Jerry’s strengths of persistence and need to know
      details continue to be areas that bog him down as well.
      He continues to spend too much time working on small
      individual groups, as opposed to working at the
      corporate level through H.R. departments. He has been
      given reminders to re-focus his efforts on corporate
      accounts.

R. 372.



                                     5
a mere misunderstanding not deserving of termination.                Murphy

produced no corroborating evidence to support these allegations

regarding the dissolution of the vanpool.           Murphy has further made

uncorroborated allegations that subtle agist and racist comments

were made during the course of his employment. Allegations in and

of themselves cannot undermine MTA’s legitimate non-discriminatory

reasons for termination or defeat defendant’s motion for summary

judgment.   Nuwer v. Mariner Post-Acute Network, 332 F.3d 310, 314

(5th Cir. 2003).    Moreover, Murphy has produced no evidence that

could undermine the poor performance evaluations that he received

during his employment at MTA.3         Murphy has not demonstrated that

the reasons for his termination were pretextual and therefore has

not   satisfied    his   burden   of       proof.   Summary   judgment   was

appropriate.

      For the reasons set forth above, the judgment of the district

court is AFFIRMED.4




      3
     Murphy has forfeited his     failure to promote claim on
appeal. Appellant’s Brief at      17-18 (“Even though Mr. Murphy
relinquishes his claim of age     and racial biases in his
application for the manager’s     position . . . .”).
      4
     On May 3, 2004, Murphy filed a Motion for Relief with the
Court. Given the denial of Murphy’s appeal on the merits that
motion is denied as moot.
                                       6
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