UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-30169
(Summary Calendar)
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OTIS M. BAKER,
Plaintiff-Appellant,
versus
EXXON CHEMICAL AMERICAS, D/B/A EXXON CO., and
RICHARD DEBATES,
Defendants-Appellees.
________________________________________________
Appeal from the United States District Court
For the Middle District of Louisiana
(92 CV 312 B)
________________________________________________
August 29, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Otis M. Baker sued Exxon Co. ("Exxon") for terminating his
employment as a temporary mechanical supervisor. Baker claimed
that Exxon intentionally discriminated against him in violation of
42 U.S.C. §§ 1981, 1985(3) (1988), and that Exxon and Richard
DeBates, his former supervisor, had discriminated against him
because of his race in violation of Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. § 2000e (1988). The district
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
court granted Exxon and DeBates' motion for summary judgment on the
Title VII claims and dismissed the remaining claims. Baker appeals
the judgment against him, and we affirm.
I
Exxon employed Baker as a temporary mechanical supervisor in
its Baton Rouge, Louisiana, facility. After rumors concerning
Baker's time sheets surfaced, Exxon conducted an investigation and
concluded that Baker had claimed pay for hours that he had not
worked.1 Consequently, Exxon terminated Baker for committing three
"posted offenses": (1) making a Company record which the employee
does not believe to be correct, (2) making a statement to the
Company which the employee does not believe to be true, and (3)
stealing from the Company.2 An arbitrator later ordered Baker's
reinstatement.3
Baker filed a charge of discrimination with the EEOC,
contending that his discharge had resulted from racial
discrimination. The EEOC issued a Notice of Right to Sue. Baker
then filed suit against Exxon and his former supervisor, DeBates,
alleging racial discrimination against him in violation of Title
VII. He claimed that Exxon had racially discriminated against him
1
During the period of time in question, an explosion had occurred at
the Exxon plant. Because the incident required substantial overtime by many
employees, some salaried supervisors, such as Baker, received overtime pay for
the additional hours that they had worked.
2
Exxon concluded that Baker had received approximately $1,000 in
falsely claimed overtime.
3
Exxon reinstated Baker as a pipefitter, which was his position prior
to acting as a temporary supervisor.
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in three ways: (1) failing to promote him to permanent supervisor,
(2) failing to pay him on an hourly basis, and (3) terminating his
employment. He also alleged violations of § 1981 and § 1985(3).
Baker further claimed that DeBates, his former supervisor, racially
discriminated against him in the investigation of the allegedly
falsified time sheets.
Exxon and DeBates moved for summary judgment on the Title VII
claims. Exxon also moved for dismissal of all other claims. In
his response to the motion for summary judgment, Baker added an
allegation that even though Exxon had reinstated him, it had
demoted him in retaliation for the filing of this suit.
A magistrate judge recommended granting Exxon and DeBates'
motion for summary judgment on the Title VII claim and dismissing
all other claims. The district court adopted the magistrate
judge's recommendation, granted summary judgment to Exxon and
DeBates on the Title VII claim, and dismissed Baker's § 1981 and
§ 1985(3) claims with prejudice. Baker now appeals.
II
Baker contends that the district court erred by rendering
judgment in Exxon's favor on his Title VII claim.4 We review a
district court's grant of summary judgment de novo. Armstrong v.
City of Dallas, 970 F.2d 62, 65 (5th Cir. 1993). If the movant
demonstrates that))based on the pleadings, depositions, and answers
4
Baker did not brief any argument as to his § 1981 and § 1985(3)
claims; he has therefore waived them on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993) (holding that claims not argued in the body of the
brief are abandoned on appeal); Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988) ("[A]rguments must be briefed to be preserved.").
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to interrogatories, together with affidavits))no genuine issue of
material fact remains and that the movant is entitled to judgment
as a matter of law, we will affirm the grant of summary judgment.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S. Ct. 2548, 2552, 91 L. Ed. 2d 295 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d
202 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). If the movant carries this burden, the
nonmovant may not rely only on allegations or denials in its
pleadings, but must show more that a "metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538
(1989); see also Little, 37 F.3d at 1075 (noting that party does
not satisfy summary judgment burden with conclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence). We
view the facts and all inferences in the light most favorable to
the nonmovant, Anderson, 477 U.S. at 255, 106 S. Ct. at 2513;
Little, 37 F.3d at 1075, and we may not weigh the evidence or
resolve factual disputes, Little, 37 F.3d at 1075; International
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.
1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936, 117 L. Ed. 2d
107 (1992). Nonetheless, if the record as a whole could not lead
a rational factfinder to decide in the nonmovant's favor, no
genuine issue of material fact remains and summary judgment is
proper. Amoco Prod. Co. v. Howell Energy, Inc., 969 F.2d 146, 148
(5th Cir. 1992); see also Armstrong, 997 F.2d at 67 ("Summary
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judgment is appropriate where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment
in favor of the nonmovant . . . ."). We may affirm a grant of
summary judgment on any grounds supported by the record. In re
Jones, 966 F.2d 169, 172 (5th Cir. 1992).
Baker argues that Exxon racially discriminated against him
when it terminated his employment. He contends that Exxon treated
similarly situated white employees differently. Under Title VII,
it is unlawful for any employer "to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any
individual with respect to . . . 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) (1988). A Title VII plaintiff carries "the initial burden
of offering evidence adequate to create an inference that an
employment decision was based on a discriminatory criterion illegal
under the Act." International Bhd. of Teamsters v. United States,
431 U.S. 324, 358, 97 S. Ct. 1843, 1866, 52 L. Ed. 2d 396 (1977).
A prima facie case of discriminatory discharge includes the
following elements: (1) that the plaintiff was a member of a
protected class; (2) that the plaintiff was qualified for the
position at issue; (3) that the defendant discharged the plaintiff;
and (4) that the defendant treated persons outside the protected
class differently. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (defining
prima facie case); see also Little v. Republic Ref. Co., 924 F.2d
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93, 97 (5th Cir. 1991) ("To establish a claim of disparate
treatment, [the employee] must show that [the employer] gave
preferential treatment to [a person outside the protected class]
under `nearly identical' circumstances."); Davin v. Delta Air
Lines, Inc., 678 F.2d 567, 570 (5th Cir. 1982) (noting that
plaintiff can establish a prima facie case by showing that person
similarly situated was treated differently).
Baker provided evidence of the first three elements of a prima
facie case of race discrimination. First, as an African-American,
he is a member of a protected class. Second, he was qualified as
a mechanical supervisor. Lastly, Exxon discharged him. It is the
last element of the prima facie case that is in question: Has
Exxon treated white employees differently under similar
circumstances? Disparate treatment is probative of discriminatory
intent only if persons outside the protected class were so
similarly situated that the most likely reason for the different
treatment is race, and the plaintiff has the burden to show
similarity. See Smith v. Wal-Mart Stores, 891 F.2d 1177, 1180 (5th
Cir. 1990) (requiring plaintiff to "show that [a person outside the
protected class] and [the plaintiff] had been similarly situated");
see also Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317, 322
(defining "similarly situated" persons as "two employees [who] are
involved in or accused of the same offense and are disciplined in
different ways").
Baker argues that a white supervisor, Ralph Cook, committed
the same offense as that for which Exxon discharged Baker, but that
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Exxon only reprimanded Cook. During the investigation of Cook,
however, Cook admitted that he had claimed hours that he had not
actually worked, but that he believed that Exxon policy allowed
supervisors to claim hours spent on call even if they were not
actually called into work. Cook admitted his mistaken
understanding of Exxon's policies and did not deny that he had not
actually worked the hours in question. In contrast, Exxon had also
investigated Gerald Gauthier, another white employee, for
falsifying time sheets. During the investigation, Gauthier refused
to admit that he had not worked the hours claimed, and denied
falsifying his time sheets. Exxon terminated Gauthier for the same
"posted offenses" as those Exxon had applied to Baker.
Baker contends that his situation equates to that of Cook, and
not to that of Gauthier. We disagree. Baker never admitted that
he had not worked the hours claimed on his time sheets. Also, he
did not claim that he had only misinterpreted an Exxon policy. We
therefore hold that Baker's situation matches that of Gauthier.
Because Exxon treated Baker and Gauthier identically, Baker's claim
of disparate treatment fails. See Republic Ref. Co., 924 F.2d at
97 (rejecting claim of identical circumstances because supervisor
who allegedly supervised plaintiff and other employee differently
was plaintiff's supervisor for only one week, but had been long-
term supervisor of other employee); Smith, 891 F.2d at 1180
(holding that plaintiff and other employee were not similarly
situated because other employee breached different policy which was
subject to different disciplinary measures). Baker therefore
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failed to establish his prima facie case of discriminatory
termination.
Baker argues, however, that the arbitrator's order to
reinstate him proves that Exxon discriminated against him. Even if
the termination were wrongful, however, the decision is not
discriminatory if the employer had a sincere and honest belief,
based on lawful reasons, that its actions were justified. See
Dickerson v. Metropolitan Dade County, 659 F.2d 574, 581 (5th Cir.
Unit B Oct. 19, 1981) ("Even if [the employer] were wrong in its
evaluation of the [employee's conduct], it did not violate Title
VII if it acted on a reasonable belief about [the conduct].");
Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025,
1036 (5th Cir. 1980) (holding that whether employer's factual
conclusion was wrong was "irrelevant" if employer reasonably acted
on that conclusion). Wrongful termination in and of itself does
not violate Title VII. See Wilson v. Belmont Homes, Inc., 970 F.2d
53, 57 (5th Cir. 1992) ("Title VII, by its own terms, does not
require that an employer terminate its employees for good cause;
our inquiry is not into the merits of the employer's decisions but
into the motives."). Baker does not challenge whether Exxon
reasonably relied on its conclusion; he only challenges the
reasonableness of Exxon's conclusion. Moreover, the arbitrator did
not determine Exxon's motivation, only the accuracy of its
decision. Accordingly, the arbitrator's order is not dispositive
of Baker's discrimination claim, and it does not cure Baker's
failure to demonstrate a prima facie case of discriminatory
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discharge.
Baker also argues that the district court should not have
granted Exxon's motion for summary judgment on his failure-to-
promote claim. Baker concedes that Exxon has promoted African-
American employees as well as white employees from temporary to
permanent supervisor. Moreover, the last promotion for which Baker
alleged that he was eligible occurred more than 180 days prior to
the filing of his EEOC charge. Accordingly, Baker's claim was
untimely. See Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th
Cir. 1988) (requiring charge to EEOC before filing suit and
requiring "that such a charge must be filed within 180 days after
the alleged unlawful practice"), cert. denied, 488 U.S. 1007, 109
S. Ct. 789, 102 L. Ed. 2d 781 (1989); see also Love v. Pullman Co.,
404 U.S. 522, 523, 92 S. Ct. 616, 617, 30 L. Ed. 2d 679 (1972) ("A
person claiming to be aggrieved by a violation of Title VII
. . . may not maintain a suit for redress in federal district court
until he has first unsuccessfully pursued certain avenues of
potential administrative relief.").
Although Baker concedes the timing of the last actual
promotion for which he was eligible, Baker argues that the
discriminatory policy is ongoing. Even if we assume that such an
argument might cure the untimeliness, Baker provides no facts to
support this allegation in his affidavit. Therefore, he fails to
sustain his summary judgment burden to show specific facts that
create a genuine, material issue. See Travelers Ins. Co. v.
Liljeberg Enters., Inc., 7 F.3d 1203, 1206 (5th Cir. 1993)
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("`[C]onclusory allegations supported by a conclusory affidavit
will not suffice to require a trial.'" (quoting Shaffer v.
Williams, 794 F.2d 1030, 1033 (5th Cir. 1986)); Salas v. Carpenter,
980 F.2d 299, 305 (5th Cir. 1992) ("[C]onclusory assertions cannot
be used in an affidavit on summary judgment."); cf. Little, 37 F.3d
at 1075 ("We do not . . . in the absence of any proof, assume that
the nonmoving party could or would prove the necessary facts."
(emphasis omitted)). Consequently, the district court properly
granted summary judgment on the failure-to-promote claim.5
We also reject Baker's challenge to the district court's grant
of DeBates' motion for summary judgment. The record reveals no
evidence that when he investigated allegations of wrongdoing,
DeBates treated anyone, white or black, any differently than he
treated Baker. Baker's mere subjective belief that DeBates
discriminated against him does not withstand a motion for summary
judgment. See Waggoner v. City of Garland, 987 F.2d 1160, 1164
(5th Cir. 1993) (rejecting mere subjective belief of discrimination
as "simply insufficient to establish [a discrimination] claim");
Elliott v. Group Medical & Surgical Serv., 714 F.2d 556, 567 (5th
Cir. 1983), cert. denied, 467 U.S. 1215, 104 S. Ct. 2658, 81 L. Ed.
2d 364 (1984) (same).
Baker lastly contends that the district court ignored his
retaliation claim. We do not address this claim, however, because
5
Baker also challenges the grant of summary judgment on his claim that
Exxon discriminated against him by failing to pay him on an hourly basis.
Because Baker concedes that Exxon pays all temporary supervisors on a salaried
basis, his claim has no merit.
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Baker did not include it in his EEOC charge, and the EEOC
investigation did not cover it. See Walls v. Mississippi State
Dep't of Pub. Welfare, 750 F.2d 306, 317-18 (5th Cir. 1984)
(limiting Title VII suit to allegations in EEOC charge and any
other claims covered by EEOC investigation); Ray v. Freeman, 626
F.2d 439, 442 (5th Cir. 1980) ("Compliance with the administrative
review apparatus provided by Title VII is a requisite for judicial
review of a discrimination claim."). Moreover, Baker's complaint
did not include this claim, and he made no motion to amend the
complaint to add such a claim. Accordingly, Baker did not properly
present it to the district court, and we will not consider it for
the first time on appeal. See Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991).
III
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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