Brown v. Outsource Specialist, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-51252
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WALTER G. BROWN, JR.,
Plaintiff-Appellant,
VERSUS
OUTSOURCE SPECIALIST, INC.;
CITGO PETROLEUM PIPELINE CORPORATION,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(A-00-CV-29)
_________________________
September 21, 2001
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Outsource Specialist, Inc. (“OSI”), hired
Walter Brown on a temporary basis to perform
maintenance and delivery services for Citgo
Products Pipeline Company (“Citgo”) while
Citgo phased in an automated system. During
his tenure from 1994 to 1999, Brown, who is
black, believed OSI and Citgo did not give him
the same privileges as his white co-workers, so
he sued. The district court granted summary
judgment for OSI and Citgo on the basis that
Brown had failed to establish either a prima
facie case or pretext for discrimination.
Finding no error, we affirm.
* 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determined that this opinion should not be published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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I.
Brown provided pipeline operator and de-
livery services. In 1995, he applied for a me-
chanic position, but Citgo filled the opening
with a white applicant. Two months before
Brown was terminated, he filed a complaint
with the Equal Employment Opportunity
Commission (“EEOC”) and the Texas
Commission on Human Rights (“TCHR”),
alleging discrimination on the basis of race
because he had to arrive earlier and document
his work time in more detail than did white
employees. After receiving a right-to-sue
letter from the EEOC, Brown sued OSI and
Citgo under title VII of the Civil Rights Act of
1964, claiming discrimination and retaliation.
As further evidence of unequal treatment,
Brown claimed OSI and Citgo required him to
work during holidays and family events, forced
him to mow the lawn with a mower that hurt
his back, provided him with a truck and cell
phone later than it provided the same to white
employees, and verbally threatened his job.
Citgo began laying off workers in 1997 but did
not terminate Brown until March 1999. He
alleges that white employees were retained
longer or were allowed to leave their positions
earlier with pay.
II.
We review a summary judgment de novo.
Boyd v. State Farm Ins. Cos., 158 F.3d 326,
328 (5th Cir. 1998). A court may enter
summary judgment if the record, taken as a
whole, “shows 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). If a party “fails to make
a showing sufficient to establish the existence
of an element essential to that party’s case and
on which that party will bear the burden of
proof at trial,” rule 56(c) mandates summary
judgment for the opposing side. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
III.
We have reviewed the record and conclude
that the district court correctly entered
summary judgment. To establish a prima facie
case of discrimination with indirect evidence of
employer animus, a plaintiff must show that he
(1) is a member of a protected class; (2) is
qualified for the position; (3) suffered an
adverse employment action; and (4) was re-
placed by a member of a non-protected class.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993).
Brown’s various complaints regarding his
work conditions are not actionable under title
VII. Although his termination does constitute
an adverse employment action, Brown has not
established a prima facie case, because he has
not demonstrated that non-protected class
members were treated differently. When OSI
and Citgo downsized, they laid off thirteen
white workers before Brown and had
terminated all workers three months later.
Even if he had a prima facie case, an across-
the-board layoff is a legitimate, non-
discriminatory reason for termination. See
EEOC v. Tex. Instruments Inc., 100 F.3d
1173, 1181 (5th Cir. 1996).
On his failure-to-hire claim, Brown did es-
tablish a prima facie case, but he cannot pre-
vail without showing that he had superior
qualifications. See EEOC v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1445 (5th Cir.
1995). Because he has not, he cannot
establish that the defendants’ proffered rea-
son—that the other candidate was more quali-
fied—was pretextual.

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IV.
The defendants’ legitimate reason for
Brown’s termination defeats his retaliation
claim. To establish a prima facie case of re-
taliation under title VII, Brown must show
that (1) he engaged in protected activity;
(2) the defendants took adverse employment
action against him; and (3) a causal connection
exists between the protected activity and the
adverse employment action. See Mattern v.
Eastman Kodak Co., 104 F.3d 702, 705 (5th
Cir. 1997). Brown has made a prima facie
case of retaliation, because he filed TCHR and
EEOC complaints and was fired shortly
thereafter. To prevail, however, he must show
that his protected activity was the “but for”
cause. See Long v. Eastfield College, 88 F.3d
300, 304 n.4 (5th Cir. 1996). Brown has not
offered any additional evidence of a causal
connection between the filing and firing.
AFFIRMED.

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