United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-11403
_______________________
KEVIN A. MOORE,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE, INC.
Defendant-Appellee.
_________________________________________________________________
On Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
No. 3:023-CV-1399-L
________________________________________________________________
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
This is a pro se appeal from the district court's grant
of summary judgment to defendant United Parcel Service, Inc.
(“UPS”) on plaintiff Kevin Moore’s claims for discrimination,
hostile work environment, and retaliation under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and
42 U.S.C. § 1981. Because no genuine issues of material fact exist
with respect to Moore’s claims, we AFFIRM the district court’s
grant of summary judgment.
I. BACKGROUND
*
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opinion should not be published and is not precedent except under the limited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.
Moore joined UPS as a part-time worker in April 2000. He
was a member of the Local 767 union, and the terms of his
employment were governed under a collective bargaining agreement
between UPS and the union. Under the agreement, employees may be
discharged for absenteeism after they have been given one initial
written warning. Also under the agreement, at the employer’s
discretion, employees may be issued more than one written warning
in order to correct performance or attendance problems. R. at 204,
213.
Moore started his employment at UPS as a pre-loader, but
began training as a driver in April 2001. Due to repeated
performance failures, as well as an accident, however, Moore was
disqualified from driving on May 12, 2001. In addition to his poor
performance as a driver, Moore was absent or tardy more than eighty
times during his last ten months of employment. Moore received his
first warning letter for his poor attendance after failing to
report to work on May 29, 2001.
On June 1, 2001, Moore filed a grievance contesting his
disqualification as a driver. As a result of the grievance, a
settlement was reached between the union and UPS in which UPS
agreed to give Moore another opportunity at a driver position when
an opening became available. On July 11, 2001, after being late or
absent four times in the previous two weeks, UPS issued Moore a
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second warning letter for poor attendance. An intent to suspend
notification accompanied the second warning letter.1
Between July 25, 2001 and August 31, 2001, Moore was late
or absent eight more times. On September 7, 2001, UPS issued Moore
an intent to terminate notification.2 In response, on September
12, 2001, Moore filed a grievance challenging the second warning
letter, the intent to suspend notification, and the intent to
terminate notification. Following a hearing between the union and
UPS on September 26, 2001, Moore agreed to withdraw his grievance
and serve a suspension for his attendance infractions. In
exchange, UPS withdrew its intent to terminate.
Just two days later, on September 28, 2001, Moore once
again reported late to work. In response, UPS issued Moore another
intent to terminate notification. On October 10, 2001, Moore
reported late to work once again. On October 19, 2001, UPS
notified Moore that his employment was being terminated for poor
attendance. In response to the notification, Moore instead decided
to sign a separation notice, which voluntarily terminated his
employment.
1
This action initiated the grievance procedure for suspension
required under the collective bargaining agreement, but did not immediately
remove Moore from his job.
2
This action initiated the grievance procedure for termination
required under the collective bargaining agreement, but did not immediately
remove Moore from his job.
3
Notwithstanding the fact that he quit, Moore sued UPS for
Title VII violations. On appeal, we have construed his arguments
generously.
II. STANDARD OF REVIEW
We review the district court's summary judgment de novo.
Freeman v. Tex. Dep’t. of Crim. Justice, 369 F.3d 854 (5th Cir.
2004). Summary judgment is proper when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
burden is on the moving party to show that “there is an absence of
evidence to support the nonmoving party's case.” Freeman, 369 F.3d
at 860 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.
Ct. 2548, 2554 (1986)). Once the moving party meets its initial
burden, the nonmoving party “must set forth specific facts showing
that there is a genuine issue for trial.” FED. R. CIV. P. 56(e).
The nonmoving party, however, “cannot satisfy this burden with
conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Freeman, 369 F.3d at 860 (citations
omitted).
III. DISCUSSION
Moore challenges the district court’s summary judgment
rulings on his claims.
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A. Discrimination
Moore argues that he provided direct evidence of
discriminatory remarks made by his immediate supervisors as
required under Title VII. 42 U.S.C. § 2000e-2(a). Workplace
remarks are considered sufficient evidence of discrimination if
they are 1) related to the protected class of persons of which the
plaintiff is a member, 2) proximate in time to the complained-of
adverse employment decision, 3) made by an individual with
authority over the employment decision at issue, and 4) related to
the employment decision at issue. Rubinstein v. Adm’rs of Tulane
Educ. Fund, 218 F.3d 392, 401 (5th Cir. 2000) (citation omitted).
Moore fails to establish the second, third, and fourth
elements of the test. The racial epithets were allegedly made
between April 2000 and April 2001, and therefore were not proximate
in time to Moore’s termination in October 2001. Additionally, the
alleged epithets were made by individuals at UPS who did not have
authority over Moore’s termination. Further, there is no evidence
in the record that establishes that the remarks were related to the
decision to terminate Moore. Finally, it is undisputed that Moore
never complained of or reported any of the alleged remarks to
either his union or another manager. “Stray remarks with no
connection to an employment decision cannot create a fact issue
regarding discriminatory intent and are insufficient to defeat
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summary judgment.” Scales v. Slater, 181 F.3d 703, 712 (5th Cir.
1999).
Because Moore failed to provide direct evidence of
discrimination, he must create a presumption of intentional
discrimination by establishing a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S. Ct. 1817, 1824-25 (1973). To establish a prima facie
case of race discrimination in an employment termination case,
Moore must prove that he “(1) is a member of a protected class;
(2) was qualified for h[is] position; (3) was subject to an adverse
employment action; and (4) was replaced by someone outside the
protected class, or, in the case of disparate treatment, shows that
others similarly situated were treated more favorably.” Okeye v.
Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th
Cir. 2001) (citations and internal quotation marks omitted).
Moore has failed to provide evidence to show that others
similarly situated were treated more favorably. UPS records
indicate that Moore was late or absent from work more than eighty-
five times during the last ten months of his employment. UPS
submitted evidence that it terminated Moore for poor attendance.
In an effort to satisfy the fourth element of the test,
Moore argues that two white employees were not disciplined for poor
attendance. The documents Moore provided to the district court,
however, were not authenticated or identified as UPS business
records pursuant to FED. R. EVID. 803(6), and were not accompanied
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by any explanatory information to aid the court in understanding
the statistical information contained in the documents. Therefore,
the district court correctly concluded that the evidence did not
support Moore’s claim. Since Moore did not provide the district
court with any additional evidence, he has not raised a genuine
issue of material fact that others similarly situated were treated
more favorably and cannot establish a prima facie case. The
district court correctly concluded that UPS was entitled to summary
judgment on Moore’s claim that he was terminated because of his
race.
B. Hostile Work Environment
Moore argues that he established the elements of a prima
facie case for a racially hostile work environment under Title VII.
To establish a prima facie case, Moore must prove that
(1) he belongs to a protected group; (2) he
was subjected to unwelcome harassment; (3) the
harassment complained of was based on race;
(4) the harassment complained of affected a
term, condition, or privilege of employment;
(5) the employer knew or should have known of
the harassment in question and failed to take
prompt remedial action.
Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)(citations
omitted). “For harassment on the basis of race to affect a term,
condition, or privilege of employment . . . it must be sufficiently
severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Id.
(citations and internal quotation marks omitted). To determine
7
whether a hostile work environment existed, a court must consider
“the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. (citations omitted).
Moore argues that several supervisors made a few racial
comments that created a hostile environment. Moore, however,
admitted that he never complained to UPS’s human resource
department or another supervisor about the comments. Moore failed
to provide evidence to establish that the few isolated comments
were so severe or pervasive that they affected a term, condition,
or privilege of employment, or unreasonably interfered with his
work performance. Moore also argued that the discipline he
received for being tardy or absent was further evidence of a
hostile work environment. As noted earlier, however, Moore, failed
to establish that the discipline was racially motivated.
Consequently, Moore failed to provide evidence sufficient to create
a material issue that his workplace was an abusive or hostile
working environment.
C. Retaliation
Moore finally contends that he established the elements
of a prima facie case of retaliation. This claim requires proof
that: (1) he engaged in a protected activity, (2) he experienced
an adverse employment action following the activity, and (3) there
8
was a causal link between the protected activity and the adverse
employment action. Montemayor v. City of San Antonio, 276 F.3d
687, 692 (5th Cir. 2001). Under Title VII, an employee has engaged
in protected activity if he has “opposed any practice made an
unlawful employment practice by this subchapter,” or “made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”
42 U.S.C. § 2000e-3(a).
Moore argues that he was retaliated against for filing a
grievance on June 1, 2001 for his disqualification as a driver.
Moore, however, was not engaged in a protected activity, as his
grievance did not oppose or protest racial discrimination or any
other unlawful employment practice under Title VII. Rather, Moore
simply complained that UPS had violated its agreement with the
union. Moore’s grievance, which made no mention of race
discrimination, stated that he was following his supervisor’s
instructions when he returned to the service center without
delivering his assigned packages. As such, Moore was not engaged
in a protected activity when he filed his grievance, and he cannot
establish a prima facie case for retaliation. Therefore, the
district court correctly granted summary judgment to UPS on Moore’s
retaliation claim.
IV. CONCLUSION
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For the reasons discussed above, we AFFIRM the district
court’s ruling of summary judgment.
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