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* Local Rule 47.5 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should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-10275
Summary Calendar
DAVID O. SANDERS,
Plaintiff-Appellant,
VERSUS
LTV AEROSPACE, CO.,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:93-CV-506-H)
(January 24, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
David O. Sanders ("Sanders") appeals from a district court's
order granting summary judgment to LTV Aerospace Company ("LTV").
Sanders brought a civil rights action against his employer LTV,
alleging discrimination based on race. The district court held
that Sanders failed to raise a fact issue concerning LTV's alleged

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pretextual reasons for suspending him. We affirm the judgment.
On March 15, 1993, Sanders filed this suit, alleging that he
had been wrongfully discriminated against on the basis of race
under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C.
§ 1981. As an African-American, Sanders is a member of a protected
group. To support his claim, Sanders alleges that two other LTV
employees, who are not African-Americans, received less severe
discipline for similar misconduct, specifically relying on the
disciplinary action taken against LTV employees Steve Whymark and
Ted Barrera.
Summary Judgment Proof Relating to Sanders
The following facts were not disputed by Sanders in his
response the LTV's Motion for Summary Judgment. In June 1956,
Sanders began working for LTV as a janitor. In 1959, he was laid
off. In 1974, he returned to LTV, continuing to work as a janitor.
In 1976, Sanders was again laid off. In 1979, Sanders was rehired
as an Assembly B person. In 1980, Sanders became a fabricator at
LTV's Grand Prairie, Texas facility. Throughout his entire tenure
with LTV, Sanders was a member of a collective-bargaining unit
represented by the United Auto Workers Union ("UAW").
On December 20, 1990, Sanders was terminated for physically
fighting with a fellow employee, Ted Barrera. By agreement between
LTV and the UAW, Sanders' termination was converted into a
suspension without pay, and he was reinstated on January 7, 1991.
Mr. Barrera was likewise terminated and reinstated; however, his

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suspension was for a longer period than Sanders'. Sanders conceded
at his deposition that Mr. Barrera received a harsher suspension
because he had been involved in several prior incidents.
On November 26, 1991, Sanders engaged in a verbal altercation
with another fellow employee, Ernie Guerra. Sanders shouted
racially offensive comments at Guerra. This time, Sanders picked
up a lead hammer and hit a table with it, breaking a coffee cup
which was resting on the table. Sanders then threw the hammer into
a corner of the room. LTV terminated Sanders. However, by
agreement with LTV and the UAW, Sanders was reinstated on March 16,
1992, placed on probation for three years, and required to see a
psychologist at LTV's expense.
Summary Judgment Proof Relating to Co-Employees
The undisputed summary judgment evidence shows that, on
February 16, 1992, Whymark was involved in an altercation with LTV
employee David Deninger. Deninger made a series of "rude and
harassing comments to Whymark." At some point, Whymark threw a
scrapper on the floor and told Deninger that he was "tired of this
crap." No blows were exchanged. The supervisor separated the two
and sent them to a Labor Relations Representative who determined
that they should both be suspended without pay for four days. This
was the first time that Whymark was disciplined for misconduct.
On October 23, 1987, Barrera was involved in an incident with
two other LTV employees, Anthony Esparza and Henry Talton. Esparza
made a harassing remark to Barrera, who grabbed a Stanley knife
from a nearby table and threw it at a wall, near Esparza and

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Talton. The knife ricocheted off the wall, struck Talton, and cut
him on his leg. LTV terminated Barrera. Barrera filed a grievance
protesting his termination, which was sent to arbitration. Over
LTV's objection, the arbitrator ordered that Barrera be reinstated
with three weeks' suspension.
Analysis
In disparate treatment cases, the inquiry is whether the
employer treated some people less favorably than others because of
their race, color, religion, sex, or national origin. Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). When there is
no direct evidence of discriminatory intent, an employee must first
establish a prima facie case of discrimination, then the employer
must articulate a legitimate nondiscriminatory rationale for its
actions. See Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the employer produces evidence which would
permit the conclusion that there was a non-discriminatory reason
for its actions, then the employer has satisfied its burden. See
St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). At this
point, the employee must demonstrate that the employer's
articulated reason is a pretext for discrimination. Bodenheimer v.
PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).
Here, the undisputed summary judgment evidence shows that LTV
employee Whymark received less severe disciplinary action because
it was his first and only offense. This is not the case with
Sanders, as he was involved in another fight less than a year
before the altercation at issue. Whymark is not similarly-situated

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to Sanders.
With respect to LTV employee Barrera, he was discharged for
throwing the Stanley knife at the wall. By terminating Barrera,
LTV disciplined him similarly to Sanders. In Barrera's case,
however, he brought a grievance which was sent to arbitration.
Over LTV's objection, the arbitrator was more lenient toward
Barrera. These undisputed facts do not support Sanders' position
that LTV treated Barrera more favorably.
Sanders has failed to establish the existence of elements
essential to his case, those for which he would bear the burden of
proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). First, Sanders has not shown that other non-African-
American employees who engaged in similar acts were not punished to
the same degree. He has not demonstrated disparity of treatment.
See Green v. Armstrong Rubber Co., 612 F.2d 967, 968 (5th Cir.
1980) (per curiam), cert. denied, 449 U.S. 879 (1980). Second,
Sanders has not provided any summary judgment evidence creating an
issue of fact that LTV's reasons for its actions were a pretext for
race discrimination. See Britt v. The Grocers Supply Co., Inc.,
978 F.2d 1441, 1451 (5th Cir. 1992), cert. denied, 113 S.Ct. 2929
(1993)(age discrimination). In fact, the undisputed summary
judgment evidence shows that LTV based its disciplinary action
against Sanders upon his November, 1991, violation of company rules
in combination with his prior December, 1990, violation of company
rules. Accordingly, we AFFIRM the district court's judgment.

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