United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-20397
ANTONIO ABARCA,
Plaintiff-Appellant,
VERSUS
METROPOLITAN TRANSIT AUTHORITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:
Appellant Antonio Abarca filed suit against Metropolitan
Transit Authority (“Metro”), asserting, inter alia, that Metro
violated Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., by: (1) treating Abarca differently than
other non-Hispanic employees; (2) discharging Abarca in retaliation
for complaints and grievances he had filed against Metro; and (3)
refusing to reinstate Abarca to his previous position in accordance
with the recommendation of the union grievance board. Metro moved
for summary judgment, seeking dismissal of Abarca’s Title VII
claims. The district court granted Metro’s motion and Abarca
timely filed the instant appeal.
BACKGROUND AND PROCEDURAL HISTORY
Abarca, an Hispanic male, began his employment with Metro in
1992. In November 2000, Abarca was working at Metro’s Kashmere
facility in Houston.1 Abarca testified he had experienced no
problems at the Kashmere facility until Victor Kizzine was assigned
as Abarca’s foreman in September 2001. Abarca maintained that
Kizzine, who is black, harassed Hispanic employees. As a result of
Kizzine’s alleged discriminatory behavior, on June 21, 2002, Abarca
filed a union grievance.
Approximately one month later, on July 22, 2002, Kizzine
claimed he found Abarca sleeping on a bus that was parked at
another Metro facility where Abarca was working temporarily as a
floater. Specifically, Kizzine stated in his deposition testimony
that he observed Abarca, through the door of the bus, sleeping for
several minutes before Kizzine then attempted to open the door.
Kizzine was unable to open the door, however, because the air
pressure used to close the bus doors was engaged. At this time
Isaac Chalambaga, another Hispanic Metro employee, came from the
back of the bus and opened the door. Kizzine testified that Abarca
1
Abarca was apparently transferred to the Kashmere facility
after an altercation he had with a Metro supervisor at another
facility location. Although Abarca initially filed criminal
assault charges against the supervisor, the charges were eventually
dismissed.
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then opened his eyes and stretched, as if he had been asleep. For
his part, Abarca denies he was asleep on the bus, and Chalambaga
testified that he and Abarca were awake at the time of the alleged
incident, stating that they had pulled the bus into the paint booth
only minutes before Kizzine arrived.
After reporting his observations to his supervisors at Metro,
it was ultimately determined that Abarca was to be fired in
accordance with Metro’s employment policy.2 Shortly thereafter,
Abarca was notified that he was being discharged. Abarca filed a
grievance with the union, contesting his termination. The
grievance committee determined there was insufficient evidence
supporting Kizzine’s charge that Abarca had been sleeping on the
job. The committee’s determination was based in part on the fact
that there were no witnesses to corroborate Kizzine’s claim that
Abarca was sleeping — evidence that the committee had required in
previous cases of employees accused of sleeping while on duty. The
grievance committee recommended that Abarca be reinstated to his
position with Metro, with full back pay, seniority, and benefits.
As part of Abarca’s return to work, Metro required him to sign
a reinstatement agreement relating to the grievance, which was
presented to him when he returned to work on September 3, 2002.
The reinstatement agreement provided that:
2
A memorandum prepared by Metro in January 2000, and posted at
all Metro facilities, set forth, among other things, the policy
that sleeping on the job was punishable by discharge.
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The parties, Transport Workers Union - Local 260, AFL-
CIO, and the Metropolitan Transit Authority, hereby agree
that Grievant, Antonio Abarca, shall be reinstated with
full seniority and benefits, and back-pay for the period
July 23-August 10, 2002, conditional upon him passing a
return to work physical and drug/alcohol screens.
This agreement is made on a non-prejudice, non-precedent
basis, and shall constitute the entire settlement of this
grievance. This grievance is hereby resolved.
Abarca did not sign the agreement, however, because he was
purportedly uncomfortable with certain terms of the agreement,
including his concern as to how his vacation time was being
calculated. Although the agreement was signed by Metro’s Senior
Director of Labor Relations, Yvonne Ogden, and a union
representative, Abarca maintained he was not bound by the terms as
negotiated between Ogden and the union. Thereafter, on September
5, 2002, Metro notified Abarca by letter that Metro was rescinding
its offer of reinstatement because of Abarca’s failure to sign the
reinstatement agreement.
Abarca filed suit in state court, asserting breach of contract
claims, violations of 28 U.S.C. § 1983, and violations of Title VII
for discrimination and retaliation based on national origin. After
successfully removing the case to federal court based on the
existence of a federal question, Metro also successfully sought
dismissal of Abarca’s breach of contract and § 1983 claims. Then,
in February 2004, Metro filed a motion for summary judgment,
seeking the dismissal of Abarca’s Title VII claims. On March 31,
2004, the district court granted Metro’s motion and entered a final
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take-nothing judgment against Abarca. Abarca timely filed the
instant appeal.
STANDARD OF REVIEW
This Court reviews grants of summary judgment de novo,
applying the same standard as the district court. Tango Transp. v.
Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003)
(citation omitted). Summary judgment is appropriate if no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). The Court views
the evidence in the light most favorable to the non-movant. Coleman
v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
The non-movant must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial to avoid
summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). A genuine issue of material fact exists when the evidence
is such that a reasonable jury could return a verdict for the non-
movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is appropriate, however, if the non-movant “fails
to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex, 477 U.S. at 322-
23.
DISCUSSION
On appeal, Abarca maintains the district court erred
in granting summary judgment because there is evidence he
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was treated differently from similarly situated
individuals when Metro required him to sign the
reinstatement agreement as a condition of returning to
work. Abarca’s argument focuses on two points. First,
he cites to deposition testimony from a Metro
administrator revealing that, in practice, Metro did not
always require reinstated employees to sign such
agreements. Second, Abarca contends he was given only 36
hours to sign the reinstatement agreement, which he
nevertheless claims was an agreement between Metro and
the union, rather than between Metro and Abarca.
In its Memorandum Opinion, the district court found that
Abarca had not established a prima facie case for employment
discrimination based on race or national origin because he could
not show that he was required to do some act, i.e., sign a
reinstatement agreement, that others similarly situated were not
required to do. We subject Abarca’s discrimination claim to the
burden shifting framework enunciated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under McDonnell Douglas, Abarca must
first establish a prima facie case of discrimination. See Frank v.
Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003). If successful, the
burden then shifts to Metro to proffer a legitimate, non-
discriminatory reason for requiring Abarca to sign the
reinstatement agreement. See id. If Metro satisfies its burden,
the burden is then shifted back to Abarca to demonstrate that
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Metro’s legitimate, non-discriminatory reason was simply a pretext
of discrimination. See id.
In order to establish a prima facie case of discrimination on
the basis of race or national origin, a plaintiff must show he or
she was: (1) a member of a protected class; (2) qualified for the
position held; (3) subject to an adverse employment action; and (4)
treated differently from others similarly situated. Rios v.
Rossotti, 252 F.3d 375, 378 (5th Cir. 2001).
The focus of our inquiry is whether Abarca has satisfied the
fourth prong of this test. Metro presented evidence that while not
all reinstated employees are required to sign reinstatement
agreements, such agreements were required in approximately one-half
of the reinstatements negotiated between Metro and the union.
There is also undisputed deposition testimony from the union
president who stated that there was nothing out of the ordinary
with respect to the terms of Abarca’s particular reinstatement
agreement. And, importantly, Abarca failed to identify any
employee with whom he was similarly situated, but who was treated
more favorably.
As to Abarca’s argument regarding the 36-hour deadline for
signing the agreement, there is evidence in the record that the
union, as the exclusive representative of all bargaining members at
Metro (including Abarca), was responsible for obtaining the
signature of the member in addition to the signatures provided by
Metro and the union representative. Moreover, Ogden revealed in
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her deposition testimony that she was willing to give Abarca a few
extra days after the September 3 deadline during which he could
review and sign the reinstatement agreement – an accommodation that
Abarca did not take advantage of and one that this Court deems
adequate to afford Abarca the opportunity to address any problems
he may have had with the terms of the agreement.
In sum, Abarca has not come forward with sufficient evidence
establishing that Metro discriminated against him by requiring him
to sign the reinstatement agreement. As such, the district court
properly determined that Metro did not discriminate against Abarca
when it required him to sign the reinstatement agreement as a
condition of his return to work.
CONCLUSION
Having carefully reviewed the entire record of this case and
having fully considered the parties’ respective briefing and
arguments, we find no reversible error in the district court’s
granting of summary judgment in favor of Metro.
AFFIRMED.
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