Trotter v. BPB America Inc

United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
___________________
m 03-60929
Summary Calendar
___________________
JOHNNY TROTTER, JR.,
Plaintiff-Appellant,
VERSUS
BPB AMERICA, INC.,
DOING BUSINESS AS BPB CELOTEX,
Defendant-Appellee.
___________________
Appeal from the United States District Court
for the Southern District of Mississippi
m 4:02-CV-74
___________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.*
Plaintiff Johnny Trotter, Jr., appeals pro se
a summary judgment in his title VII suit, main-
taining that he has established a genuine issue
of fact regarding whether the stated reason for
his discharge by his employer, BPB America,
Inc., doing business as BPB Celotex (“BPB”),
was mere pretext. We affirm.
I.
BPB hired Trotter, who is black, in July
1998 as a laborer and then as an inspector. As
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 5 --

2
BPB suffered periodic cutbacks and layoffs,
Trotter was frequently reassigned, and his po-
sition fluctuated. In October 2001, he learned
that because of his lack of seniority, he was on
the list of employees to be laid off. In prepa-
ration for the layoff, he was reassigned from
inspector to floor sweeper and laborer.
On October 17, 2001, Trotter had a verbal
dispute with the union president, Roger Wil-
liams, regarding his reassignment. The dispute
escalated, verbal threats were made, and,
according to Williams, Trotter shoved him.
Trotter flatly denies ever touching Williams.
Following the altercation, both men were tak-
en into the office of plant superintendent Berry
Smith and interviewed. Smith did not take any
disciplinary action, because there were no
witnesses, though both men were warned
about causing further disturbances and then
were ordered to return to work.
Shortly after leaving his office, Smith no-
ticed Williams, Hicks, and Trotter arguing
once again on the floor. Smith intervened and
separated them, ordering them to return to
work. Williams and Hicks complied, but
Trotter began to argue with Smith, who then
ordered Trotter to come with him out of the
plant; yet again, Trot ter ignored Smith’s in-
struction. Trotter admits cursing at and insult-
ing Smith. Ultimately, they had a physical al-
tercation and had to be separated by third par-
ties. A dispute of fact exists regarding which
man was the initial physical aggressor, though
each admits to having hit the other at some
point. Immediately following the fight, Smith
fired Trotter.
Believing himself to be the victim of racial
discrimination, Trotter timely filed a charge
with the Equal Employment Opportunity
Commission, which issued a right-to-sue letter.
Trotter sued, seeking recovery under title VII,
42 U.S.C. § 2000e-2. After discovery, BPB
successfully moved for summary judgment.
II.
Summary judgment is appropriate only
where there are no genuine issues of material
fact and the moving party is entitled to judg-
ment as a matter of law. See FED. R. CIV. P.
56(c). The party seeking summary judgment
carries the burden of demonstrating that there
are no actual disputes as to any material fact.
If the nonmovant then fails to set forth specific
facts to support his allegations, summary
judgment is appropriate. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The non-
movant must “go beyond the pleadings . . . and
designate specific facts showing that there is a
genuine issue for trial.” Id. at 324.
Summary judgment is appropriate even if
the nonmovant brings forth evidence in sup-
port of its allegations, if the evidence is insuf-
ficient for a reasonable jury to find for that
party. “The mere existence of a scintilla of
evidence in support of plaintiff’s position” is
insufficient. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). We review a sum-
mary judgment de novo. Meditrust Fin. Serv.
Corp. v. Sterling Chem., Inc., 168 F.3d 211,
213 (5th Cir. 1999).
III.
A plaintiff alleging racial discrimination
under title VII in the absence of direct evi-
dence must make out a prima facie case of
discrimination. Molnar v. Ebasco Construc-
tors, Inc., 986 F.2d 115, 118 (5th Cir. 1993).
Plaintiff can make out a prima facie case if he
proves that he (1) was a member of a pro-
tected class; (2) was qualified for the position;
(3) suffered adverse employment action; and
(4) was replaced by someone outside the pro-

-- 2 of 5 --

3
tected class or that similarly situated individu-
als outside the protected class were treated
more favorably. Urbano v. Cont’l Airlines,
Inc., 138 F.3d 204, 206 (5th Cir. 1998).
Under the framework of McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802 (1973),
once a plaintiff has established a prima facie
case, the burden of production is on the defen-
dant to “articulate some legitimate, nondis-
criminatory reason” explaining defendant’s
conduct.1 If defendant is able to articulate
such a reason, the plaintiff must make a show-
ing sufficient for a jury to find that the reason
was mere pretext and discrimination was the
true motivation. Bodenheimer v. P.P.G. In-
dus., Inc., 5 F.3d 955, 957 (5th Cir. 1994). If
a plaintiff fails to satisfy his burden of proof in
either the first or third step, his claim fails as a
matter of law.
The district court found that Trotter had
established a prima facie case for discrimina-
tion, so the burden shifted to BPB to proffer a
nondiscriminatory reason for termination.2
BPB maintains that Trotter was fired because
of insubordination and fighting with his boss,
both of which are grounds for termination in
BPB’s General Rules of Conduct, which Trot-
ter read and signed in 1998. The timing and
circumstances surrounding Trotter’s firing
support BPB’s contention that Trotter was
fired for insubordination rather than on ac-
count of his race.3
With BPB’s having offered this legitimate
reason for termination, the burden returned to
Trotter to demonstrate that the reason was
pretext. Trotter may meet this threshold by
proving that an issue of material fact exists
through circumstantial evidence (i.e., by dem-
onstrating that an issue exists that BPB’s prof-
fered reason is a pretext for discrimination, or
by providing direct evidence of discrimina-
tion). See Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507, 513 (5th Cir.
2001). The district court found that Trotter
had failed to offer any real evidence and thus
failed to meet his burden of production in step
three.
Trotter objects in his pro se brief, maintain-
ing that several comments Smith made during
and after his employment, and Smith’s refusal
to fire white workers who engaged in fighting,
provide sufficient evidence to call into ques-
tion BPB’s rationale. Trotter does not provide
sufficient evidence to cast doubt on BPB’s
reason for its conduct.
1 The burden-shifting analysis of McDonnell
Douglas was reaffirmed in Reeves v. Sanderson
Plumbing Prods. Inc., 530 U.S. 133 (2000).
2 The district court found that Trotter was able
to establish that, as a black employee, he was a
member of a protected class and was qualified for
the position for which he was discharged. Trotter
also established a genuine fact issue as to whether
his white superintendent was treated more favor-
ably (because Smith, too, participated in the
brawl). Although there is a question whether
Smith was “similarly situated,” we agree with the
district court that, when read in a light most favor-
able to Trotter, existing evidence establishes a pri-
ma facie case of discrimination.
3 Trotter was fired immediately following the
altercation with his boss, which occurred on the
same day as his altercation with Williams, a senior
employee. Witnesses all testified that Trotter was
unusually aggressive on the day he was fired. A
review by plant manager (and Smith’s own boss)
Terry Stoddard found that the firing was ap-
propriate and comported with company policy.

-- 3 of 5 --

4
A.
At trial and on appeal, Trotter has at-
tempted to cast doubt on BPB’s alleged
grounds for his termination by proof of state-
ments allegedly made by Smith that might
evince racial bias. Firstly, Trotter alleges that
Smith referred to the operator of a secondary
saw, Miguel Collins, as a “straw boss.” Smith
testified in his deposition that he used the term
to refer to his floor lead persons or operators.4
Secondly, Trotter alleges that when he ran into
Smith over a year later at a local restaurant, he
overheard Smith mumble the “‘n’-word” in
passing. Smith denies having made such a
remark.
In determining whether there is a genuine
issue of material fact, evidence and inferences
must be drawn in the light most favorable to
the non-moving party. Daniels v. City of Ar-
lington, Tex., 246 F.3d 500, 502 (5th Cir.
2001). Therefore, let us assume arguendo that
both of these incidents did occur and that
Smith meant “straw boss” to be a racial slur.
Even reading the evidence in a light most fa-
vorable to Trotter, these offensive remarks
constitute nothing more than “stray remarks”
and cannot be considered sufficient to meet
Trotter’s burden of production, nor do they
create a genuine issue of fact that merits a jury
trial.
For a comment in the workplace to provide
sufficient evidence for discrimination, it must
be “(1) related [to the protected class of per-
sons of which plaintiff is a member]; (2) proxi-
mate in time to the termination; (3) made by an
individual with authority over the employment
decision at issue; and (4) related to the
employment decision at issue.” Krystek v.
Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir.
1999). Neither of Smith’s comments satisfies
that standard.
Smith’s use of the term “straw boss” was
never made in connection with Trotter, and it
was not made in a manner that related to
Smith’s decision to terminate Trotter. Fur-
thermore, Trotter offers no evidence as to
when the comment was made, but only that it
was made. Smith’s use of the “n-word,” al-
though highly offensive and never appropriate,
also constitutes nothing more than a stray re-
mark, because it occurred well over a year af-
ter Trotter’s termination (and therefore cannot
be said to be proximate in time), nor was the
comment made in the work place or was in any
way related to the employment decision at
issue. Comments that are “vague and remote
in time” are insufficient to establish discrimi-
nation. See Brown v. CSC Logic, Inc., 82
F.3d 651, 655 (5th Cir. 1996).
B.
On appeal, Trotter contends that similarly-
situated white employees were not fired after
engaging in a fight. This favorable treatment,
Trotter contends, presents a genuine issue of
material fact regarding whether BPB’s cause
for termination was pretext. Trotter did not
bring up this theory in the district court, so we
cannot consider it. See Nissho-Iwai Am. Corp
v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988).
Even if we were to consider Trotter’s the-
4 The term “straw boss” is defined as an “assis-
tant to a foreman in charge of supervising and ex-
pediting the work of a small gang of workmen.”
WEBSTER’S NEW INT’L DICTIONARY, 2257 (3d ed.
1986). Trotter contends, however, that a “straw
boss” was often used historically to refer to a black
foreman who oversaw field slaves. Trotter offers
no evidence, other than his subjective belief, to
suggest that Smith meant the term to be derogatory
or racist.

-- 4 of 5 --

5
ory, however, the evidence he submits still fails
to satisfy his burden of production under
McDonnell Douglas. To establish disparate
treatment, a plaintiff must show that the em-
ployer gave preferential treatment to another
employee under “nearly identical circumstanc-
es.” Okoye, 245 F.3d at 514. Trotter fails to
establish that the white employees who en-
gaged in fights at work were in “nearly identi-
cal circumstances,” because theySSby way of
contrastSSwere fighting other employees.
Trotter, on the other hand, got into fisti-
cuffs with his boss, a member of management.
Moreover, that was the second fight in which
Trotter had engaged that very day. BPB main-
tains that Trotter was fired for insubordination,
part of which included mouthing off to Smith
and fighting with him. Fighting with other
employees does not constitute insubordination,
and we cannot say that Trotter’s situation was
similar enough to the others’ to cast doubt on
BPB’s grounds for termination.
AFFIRMED.

-- 5 of 5 --