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this opinion should not be published and is not precedent except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.
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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
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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
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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
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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.
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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.
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