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

                                                 FILED
                                                                        September 30, 2009

                                     No. 08-51283                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ROBERT GLEN TAYLOR

                                                   Plaintiff-Appellant
v.

SETON-BRACKENRIDGE HOSPITAL

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:06-CV-730-LY


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Robert Glen Taylor (“Taylor”), an African-American,
filed suit against Seton-Brackenridge Hospital (“Seton”) alleging employment
discrimination based on race in violation of Title VII of the Civil Rights Act of
1964 and 42 U.S.C. § 1981.           The district court granted Seton’s motion for
summary judgment, and Taylor appealed. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-51283

            I. FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of the Facts
        Taylor was employed as a Clinical Assistant and then as a Sterile
Processing Technician by Seton. Taylor’s employment was terminated after a
series of events starting with the complaint by a co-worker, Jehona Tafilaj
(“Tafilaj”), that Taylor had leaned down and bitten her on the buttocks while
they were cleaning an operating room on January 5, 2005. Donna Schulze
(“Schulze”), Tafilaj’s supervisor, and Seton Senior Human Resources Generalist
Norma Gonzalez (“Gonzalez”) investigated the incident. Gonzalez interviewed
Tafilaj and two other individuals who were present in the room at the time of the
incident – Sam Olivo and Albert Kaiser (“Kaiser”). Taylor claimed that Tafilaj
had backed into his face while he was kneeling.       Neither witness saw the
incident, but Kaiser stated that Tafilaj had told him of the incident immediately
afterwards. Schulze and Gonzalez recommended that Taylor apply for a transfer
on January 21, 2005.      He did so and was placed in the Sterile Processing
Department without the normal deduction in pay.
        On July 29, 2005, Tafilaj reported two more incidents involving Taylor.
The first report was that Taylor yelled expletives at her as she exited a parking
garage on July 14, 2005, with Alicia Michalz, a co-worker. The second was that
he confronted Tafilaj and referred to her as an expletive as she exited the
hospital. Seton interviewed the witness from the first incident and reviewed the
tape from the second and found that there was sufficient evidence that Taylor
had verbally harassed Tafilaj in retaliation for her earlier complaint about him.
Seton terminated Taylor’s employment on August 9, 2005.
B. Procedural Background
        The Equal Employment Opportunity Commission (“EEOC”) sent Taylor
a right-to-sue letter concerning his current discrimination charges on May 31,
2006.    Taylor filed his Original Complaint pro se on September 21, 2006,

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bringing race discrimination claims under Title VII and 42 U.S.C. § 1981 against
Seton. On March 7, 2008, Taylor obtained counsel. Seton filed a motion for
summary judgment on September 8, 2008. On November 12, 2008, the United
States Magistrate Judge submitted a Report and Recommendation that Seton’s
motion for summary judgment be granted. The district court entered an order
adopting the Magistrate Judge’s Report and Recommendation on December 1,
2008, and Taylor filed a timely appeal.
                                 II. ANALYSIS
A. Standard of Review
      This Court reviews the district court’s grant of summary judgment de
novo, applying the same legal standard as the district court in the first instance.
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(citation omitted).   Summary judgment is proper when “the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). In making a determination
as to whether there is a genuine issue of material fact, this Court considers all
of the evidence in the record but refrains from making credibility determinations
or weighing the evidence. Turner, 476 F.3d at 343 (citation omitted). We draw
all reasonable inferences in favor of the nonmoving party, but “a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’” Id. (citations omitted). “Summary
judgment is appropriate if a reasonable jury could not return a verdict for the
nonmoving party.” Id. (citation omitted).
B. The Filing of Taylor’s Claims
      The district court granted Seton’s motion for summary judgment on
Taylors’s Title VII claims on the grounds that his complaint was not filed within
ninety days from the date he received his right-to-sue letter from the EEOC.

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Under 42 U.S.C. § 2000e-5(f), suit must be filed within ninety days of receipt of
a right-to-sue letter. See Taylor v. Books A Million, Inc., 296 F.3d 376, 381 (5th
Cir. 1982). A person who fails to file a complaint within the ninety-day period
forfeits the right to pursue the claim. Espinoza v. Missouri Pacific R.R. Co., 754
F.2d 1247, 1251 (5th Cir. 1985). The ninety-day filing period acts as a statute
of limitations, unless a plaintiff failed to receive the letter through no fault of his
own or if he presents some other reason for equitable tolling. Id.
      The EEOC issued a right-to-sue letter to Taylor on May 31, 2006. Taylor
is uncertain about the date he received the letter, but asserts that he received
the letter “some time around the middle of June” because it was erroneously
delivered to his neighbor, who failed to forward it to him immediately. He
asserts that the letter arrived between June 12, 2006, and June 18, 2006. Taylor
filed a motion to proceed in forma pauperis on September 14, 2006, and filed his
complaint on September 21, 2006.
      When the date on which a right-to-sue letter was received is either
unknown or disputed, this court has held that courts may presume “various
receipt dates ranging from three to seven days after the letter was mailed.”
Books A Million, Inc., 296 F.3d at 379. Applying this precedent, the district
court presumed that Taylor received the right-to-sue letter on June 7, 2006.
This would have required Taylor to file suit by September 5, 2006. Taylor
argues that the ninety-day period should be tolled until his actual receipt of the
letter, since the delayed receipt of the letter was through no fault of his own. He
cannot, however, pinpoint the date upon which he actually received the letter.
The district court originally allowed Taylor to proceed with the lawsuit pending
further discovery. At the time the district court granted Seton’s motion for
summary judgment, the only evidence on record pertaining to the date of filing
outside of the actual filing dates was Taylor’s sworn statement that he received
the right-to-sue letter in the middle of June. Because the district court’s grant

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of summary judgment can be affirmed on the merits of the claims, we decline to
decide whether the claim was barred as late.
C. Merits of the Section 1981 and Title VII Claims
      1. Applicable law
      Section 1981 entitles all persons within the jurisdiction of the United
States with the same rights to enter in and enforce contracts as those “enjoyed
by white citizens.” 42 U.S.C. § 1981.       The elements of an employment
discrimination claim asserted under § 1981 are identical to a discrimination
claim asserted under Title VII. Flanagan v. Aaron E. Henry Cmty. Health Sevs.
Ctr., 876 F.2d 1231, 1233 (5th Cir. 1989). Thus, employment discrimination
claims brought under § 1981 are analyzed under the same evidentiary
framework as Title VII claims. Roberson v. Alltel Information Servs., 373 F.3d
647, 651 (5th Cir. 2004).
      Under Title VII it is “an unlawful employment practice for an employer .
. . to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Taylor has not provided direct evidence of
discrimination, therefore, his claim based on circumstantial evidence is analyzed
under the burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). See Turner, 476 F.3d at 345.
      Taylor must first establish a prima facie case of discrimination by
establishing that he “(1) is a member of a protected class; (2) was qualified for
the position; (3) was subjected to an adverse employment action; and (4) was
replaced by someone outside the protected class, or in the case of disparate
treatment, shows that other similarly situated employees were treated more
favorably.” Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004).
Once Taylor demonstrates a prima facie case, Seton must articulate a legitimate,

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non-discriminatory reason for its decision to terminate Taylor. Id. If Seton
meets this burden, Taylor must then offer sufficient evidence to raise a genuine
issue of material fact as to whether Seton’s reasons are false or unworthy of
credence and, thus, merely a pretext for discrimination. See id. at 312.
          2. Taylor’s prima facie case of discrimination
          Taylor failed to establish a prima facie case of discrimination. The first
three elements are settled: Taylor is an African-American, his qualification for
the position has not been challenged, and he was discharged. Seton challenges
only the fourth element of Taylor’s prima facie case, arguing that Taylor
provided no evidence that he was replaced by a non-African-American or female
or that a similarly situated non-African-American or female was treated more
fairly.     To satisfy this element, Taylor must provide evidence of another
employee in a similar position accused of similar impropriety in the workplace
who was treated more favorably than himself. Wheeler v. BL Dev. Corp., 415
F.3d 399, 406 (5th Cir. 2005). Taylor provided no evidence of a non-African-
American or female who was accused of similar impropriety and received more
favorable treatment. He does not argue otherwise. Taylor failed to provide
evidence of the fourth element of the prima facie case of discrimination.
          3. Seton’s legitimate, non-discriminatory reason
          Even if Taylor had provided evidence of a prima facie case of
discrimination, Seton has offered a legitimate, non-discriminatory reason for its
decision to terminate Taylor. Seton asserts that it discharged Taylor because he
verbally harassed a co-worker. Seton provides evidence to support this reason,
and Taylor does not attempt to rebut this allegation. Under the McDonnell
Douglas burden-shifting framework, Seton’s establishment of a legitimate, non-
discriminatory reason for discharging Taylor would require Taylor to prove that
the given reason was merely a pretext for discrimination if he had first
established a prima facie case of discrimination. Bryan, 375 F.3d at 312.

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      4. Pretext for discrimination
      To survive summary judgment, Taylor must ultimately provide evidence
to create a genuine issue of material fact that either (1) Seton’s reason is false
and is a pretext for discrimination, or (2) that although Seton’s reason is true,
Taylor’s protected characteristic was a motivating factor for the adverse
employment action.     Id.   Taylor asserts the pretext alternative.     He must
produce sufficient evidence for a reasonable jury to find either that Seton’s
explanation is unworthy of credence or that a discriminatory reason more likely
motivated Seton’s decision to terminate him. Reeves v. Sanderson Plumbing,
530 U.S. 133, 143 (2000).
      Taylor asserts that Seton’s investigation into the allegations of
harassment was flawed because witnesses who would have corroborated his side
of the story were not interviewed, thus showing a discriminatory animus. Taylor
offers his own sworn declaration, the sworn declaration of Tracy Hill (“Hill”), and
a copy of a document detailing interview notes taken by Norma Gonzales in her
interview with Sam Olivio after the incident. He asserts that he did not bite
Tafilaj’s buttocks and that Hill, a co-worker who witnessed the incident through
an open door, would have testified to that fact if the Seton investigators would
have accepted her repeated requests to be interviewed.
      None of this information shows that Seton’s proffered reason is a pretext
for discrimination. Seton’s explanation for discharging Taylor is that he verbally
harassed Tafilaj. In fact, Taylor was not terminated immediately after the
alleged biting incident. After Seton completed its investigation, it suggested that
Taylor request a transfer to another unit. He took this action and was allowed
to retain his level of pay although it would normally have been reduced. After
the biting allegation, Tafilaj reported two separate instances of verbal
harassment by Taylor. Seton corroborated the first instance with a statement
from Alicia Michalz, a co-worker who was present at the time of the incident.

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Seton corroborated the second instance with video-tape from a camera which
monitors the hospital entrance. Taylor provides no evidence to the contrary. In
addition to failing to establish a prima facie case of discrimination, Taylor fails
to provide evidence sufficient to create a genuine issue of material fact that
Seton’s reason for discharge was merely a pretext for discrimination.
                              III. CONCLUSION
      For the foregoing reasons, the district court’s grant of Seton’s motion for
summary judgment is AFFIRMED.




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