IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20827
Summary Calendar
_____________________
BRENDA DUBOSE,
Plaintiff-Appellant,
versus
LYONDELL-CITGO REFINING COMPANY, LTD.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-1029)
_________________________________________________________________
September 23, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Brenda Dubose appeals the district court’s granting of
summary judgment for her employer Lyondell-Citgo Refining Company
Limited (“LCR”). She argues that the district court erred when it
concluded that her claims for sex and pregnancy discrimination
failed as a matter of law. As we find no error on the part of the
district court, we affirm.
Brenda Dubose was employed as a security representative at
LCR’s Houston petrochemical refinery. As a member of LCR’s Health
and Safety Department, the security representatives, or security
*
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this opinion should not be published and is not precedent except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.
guards as they were commonly referred to, reported to Mark
Steinfort, security supervisor. Dubose was assigned to work the
main gate of the refinery located between an incoming and outgoing
roadway of the refinery. The main gate house was a small building
with glass on three sides. Dubose was responsible for opening the
main gate entrance to allow traffic in and out of the refinery,
dispatch by radio the security guard who was on patrol duty, manage
the radio communications center for the refinery, handle the
procedure for responding to refinery emergencies, and doing
necessary paperwork.
In early January 1994, Dubose became pregnant with the child
of her former husband, Danny Dubose. She reported her pregnancy to
the LCR Human Resources Department soon thereafter. Sometime in
the beginning of February, Dubose began having a romantic affair
with Gary Williams, a shift supervisor in the LCR refinery’s Sulfur
Recovery Unit (“SRU”).
On February 22, Dubose reported to her supervisor, Mark
Steinfort, and to Lisa McCorquodale of the LCR Human Resources
Department that her ex-husband, Danny Dubose, who was employed by
one of the refinery’s on-site contractors, was harassing and
threatening her by telephone and in person at the refinery. She
further reported that on February 18, he left a note on the
windshield of her truck calling her a “slut,” while it was parked
at the nearby Gateway Motel. In her deposition, she admits that
she was at the Gateway Motel with LCR employee Gary Williams
2
engaged in sexual congress, while Williams was suppose to be on
duty at the SRU.
In late February, LCR’s Human Resources Department received
reports from security guards at the refinery about misconduct by
Dubose and Williams, specifically, that Dubose allowed Williams to
spend extended periods of time in the main gate house with her
during working hours; that Dubose and Williams left the refinery
together when Williams was on duty; and that Dubose, after the end
of her work shift, drove into the refinery, without proper
authorization, to visit Williams at the SRU. When questioned
during deposition about the truthfulness of such reports, Dubose
admitted to engaging in all of the reported conduct.
On February 21, Eric Finck, a security employee whom Dubose
was responsible for training, reported that Dubose left him alone
in the guard house for nearly three hours and returned accompanied
by Williams. Upon returning to the guard house, Finck observed
Dubose and Williams kissing. Finck further reported, similar to
the reports received from other LCR security guards, that on at
least two occasions, he observed the security guards standing
outside the gate house at shift change due to the buildings
occupation by Dubose and Williams. When asked at deposition about
the truthfulness of these accusations, Dubose admitted them all
with the exception of the kissing.
On February 24, Dubose met with Mark Steinfort and Lisa
McCorquodale regarding her prior reports of improper behavior by
3
her husband. Steinfort informed Dubose that LCR intended to notify
Danny Dubose’s employer of his improper behavior. Dubose was then
asked about the validity of the reports received from other LCR
security guards regarding her inappropriate behavior with Williams.
Following the meeting, Dubose was suspended with pay pending
further investigation into these allegations.
On March 1, Ms. McCorquodale, Mr. Steinfort, and Human
Resources Supervisor, Laurie Repnak Calaway, met with Dubose to
inform her that following the investigation into the allegations of
her misconduct with Williams, she was being terminated for
neglecting her employment duties. Specifically, Dubose was
terminated for allowing Williams into the gate house for extended
periods of time, because she was an unauthorized visitor to SRU
control room, and because she was observed hugging and kissing Mr.
Williams in the main gate house during her shift and while training
another security employee. On the same day, following a suspension
and investigation into the allegation of misconduct, Williams was
also terminated from LCR. On March 28, 1997, Dubose filed a charge
of discrimination against LCR pursuant to Title VII alleging
improper discriminatory termination based on sex and/or pregnancy.
Following LCR’s motion for summary judgment, the district court
granted summary judgment for LCR on both counts.
The only evidence, other than Dubose’s conclusory assertions
and nonrelevant contentions that other conduct more disruptive and
dangerous than hers by male employees resulted in lesser discipline
4
by LCR, is a series of various personnel records of employees of
LCR. After reviewing this evidence, it is clear that none of the
employees in these records are similarly situated to Dubose.1 As
correctly noted by the district court, none of the employees were
security guards, and none of the violative acts engaged in by the
employees were similar to those engaged in by Dubose. The only
arguably similarly situated employee, Mr. Williams, was discharged
for engaging in similar conduct.
After a review of the evidence in a light most favorable to
Dubose, it is clear that she has failed to make a prima facie
showing that she was treated differently from similarly situated
individuals because of her sex. Furthermore, even if Dubose was
able to establish a prima facie case, it is equally as clear that
the proffered reasons for discharge offered by LCR are valid.
Dubose was terminated for engaging in inappropriate behavior with
a co-worker, and as a result of her failure to fulfill her job
responsibilities. Dubose has admitted to engaging in the activities
cited by LCR, which form the basis for these grounds of dismissal.
Further, Dubose has failed to offer even one iota of evidence to
show that these grounds are pretextual. Thus, because Dubose has
failed to meet her burden, LCR is entitled to summary judgment on
this issue.
1
The plaintiff points to employment records detailing acts of
destruction of company property, use of profanity, sleeping on the
job, and use of company gasoline for personal use.
5
Dubose has failed to offer any credible evidence on the issue
of disparate treatment due to her pregnancy. The only evidence
offered consists of a series of innuendoes made by various company
employees, and her own subjective belief that the timing of her
announcement of her pregnancy and her termination “is suspicious.”
This evidence can hardly be sufficient to establish a prima facie
case for discrimination based on pregnancy. As such, LCR is
entitled to summary judgment on this issue.
We are in full agreement with the district court that Dubose
has failed to meet her burden of proof and has failed to raise any
genuine issue of material fact for trial. The judgment of the
district court is
A F F I R M E D.
6
DuBose v. Lyondell-Citgo Refn
Combined Opinion