Patt v. Sweetheart Cup

*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this opinion should not be published and is not precedent except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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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10057
Summary Calendar
DAVID PATT,
Plaintiff-Appellant,
versus
SWEETHEART CUP,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:99-CV-2443-X)
July 17, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Patt appeals the district court’s grant of Sweetheart
Cup’s motion for summary judgment on his Title VII claims. Patt
alleges that Sweetheart Cup, his former employer, discriminated
against him on the basis of race in connection with his termination
from his position as a clamp truck driver. We affirm.
Patt was terminated after a confrontation with Chris Gray, a

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1 411 U.S. 792, 802-805 (1973).
2 Price v. Federal Exp. Corp., 283 F.3d 715, 720 (5th Cir.
2002).
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fellow African-American employee. Because Gray’s forklift was
blocking Patt’s access through a part of the warehouse, he seized
control of Gray’s forklift and began to move materials that were
blocking his path. Gray alleged that Patt threatened him with
physical violence. Gray complained to his supervisor, who asked
Patt to describe in writing his version of the incident. Patt was
suspended later that day, and was discharged two days later. He
then filed a charge of discrimination with the EEOC, alleging that
his discharge was discriminatory. The EEOC dismissed Patt’s charge
and issued a right to sue letter. Patt then filed this suit. The
district court granted Sweetheart Cup’s motion for summary judgment
on all of his claims.
Claims of racial discrimination based only on circumstantial
evidence are evaluated under the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green.1 Under this three-part
scheme, a plaintiff must first establish a prima facie case of
discrimination by showing: (1) he belongs to a protected group; (2)
he was qualified for the position sought; (3) he suffered an
adverse employment action; and (4) he was replaced by someone
outside the protected class.2 The district court correctly held
that Patt failed to provide any summary judgment evidence that

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3 Id.
4 Id.
5 Harris v. Parker College of Chiropractic, 286 F.3d 790, 795
(5th Cir. 2002).
6 Id.
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establishes that the position remained open or that he was replaced
by someone outside of the protected class.
Moreover, the incident with Gray was a legitimate, non-
discriminatory reason for Patt’s discharge. Patt admits that he was
involved in a verbal altercation with Gray, and Sweetheart Cup’s
determination that he was the aggressor is reasonable. Even if Patt
had established a prima facie case, he could not demonstrate that
Sweetheart Cup's stated reason for his dismissal is merely a
pretext for intentional discrimination.3 Patt must provide some
evidence demonstrating that discrimination lay at the heart of
Sweetheart Cup's decision,4 and has provided none.
Patt points to other incidents assertedly of disparate
treatment that allegedly occurred during his employment at
Sweetheart Cup, incidents that were not complained of in his EEOC
charge. While Patt is not required to assert all legal claims in
the EEOC charge,5 he must at least assert the facts that are the
basis for those legal claims.6 The scope of a Title VII complaint
is limited to the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of

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7 Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395
(5th Cir. 2000).
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discrimination.7 Given that Patt alleged in the EEOC charge that
the earliest date of discrimination occurred on July 21, 1999–two
days before he was discharged–he is not permitted to complain of
persistent discrimination that existed throughout his employment at
Sweetheart Cup. His retaliation claim, which was also not made in
the EEOC charge, relies upon these same allegations and is not
permitted. The district court properly concluded that these claims
were barred for failure to exhaust administrative remedies.
For the foregoing reasons, the district court did not err in
granting summary judgment. AFFIRMED.

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