(caption unavailable)

* District Judge of the Eastern District of Louisiana, sitting
by designation.
** 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should not be published.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. 94-41144
__________________
RAMON L. GASPARINI,
Plaintiff-Appellant,
versus
BOEING DEFENSE & SPACE-CORINTH CO.,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
(4:93-CV-173)
______________________________________________
(July 26, 1995)
Before JOLLY and BENAVIDES, Circuit Judges, and DUPLANTIER*,
District Judge.
PER CURIAM:**
Ramon L. Gasparini appeals the district court's entry of
summary judgment in this national origin discrimination suit
brought pursuant to 42 U.S.C. § 2000e (Title VII). Gasparini
argues that he introduced sufficient evidence to overcome the

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motion for summary judgment filed by his former employer, Boeing
Defense & Space Corinth Company. Finding that there is a genuine
issue of material fact regarding whether unlawful discrimination
was the motivation for Gasparini's termination, we reverse and
remand.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817 (1973), the Supreme Court set forth the allocation of the
burden of production and an order for the presentation of proof
in Title VII discriminatory-treatment cases. St. Mary's Honor
Center v. Hicks, __ U.S. __, 113 S.Ct. 2742, 2746 (1993). The
plaintiff must first establish by a preponderance of the evidence
a prima facie case of racial discrimination. Id. at 2746-47. To
do so, the plaintiff must show (1) that he belongs to a racial
minority; (2) that he was qualified for the job; (3) that he was
terminated; and that the position remained open and the employer
continued to seek applicants from persons of plaintiff's
qualifications. Id. at 2747.
Such a showing creates a presumption that the employer
unlawfully discriminated against the employee. Id. (citing Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 254,
101 S.Ct. 1089, 1094 (1981)). This presumption places on the
defendant the burden of producing an explanation to rebut the
prima facie case that the adverse employment actions were taken
for a legitimate, nondiscriminatory reason. Id. The defendant
must show, through the introduction of admissible evidence, the
reasons for its actions which (if believed by the trier of fact)
would support a finding that unlawful discrimination was not the

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cause of the employment action. The ultimate burden of proving
unlawful discrimination always remains on the plaintiff. Id.
In regard to the first two steps, it is undisputed that
Gasparini made a prima facie showing of national origin
discrimination and that Boeing articulated a non-discriminatory
reason for Gasparini's termination (behavior inconsistent with
Boeing's team-based environment which was disruptive to the
operations). As to the third step, the court below opined as
follows: "Boeing argues and the Court agrees, that while
Gasparini may have created some doubt as to some of Boeing's
explanations, he has presented the Court with no evidence, direct
or indirect, that would satisfy his burden under Bodenheimer [v.
PPG Industries, Inc., 5 F.3d 955 (5th Cir. 1993)] and show
unlawful discrimination." Boeing and Gasparini are in dispute
regarding whether a plaintiff must introduce evidence not only
that the defendant's proffered explanation for the plaintiff's
termination was pretextual, but also other evidence showing that
the termination decision was motivated by illegal discrimination.
The more stringent test for the plaintiff has been called
"pretext plus." A case involving the pretext plus test is
currently pending before this Court en banc. Rhodes v. Guiberson
Oil Tools, 39 F.3d 537, 543 (5th Cir. 1994), rehearing en banc
granted by 49 F.3d 127 (5th Cir. 1995). In any event, this
Court's en banc decision in Rhodes will not be outcome
determinative because we find that Gasparini's evidence is
sufficient to create a genuine issue of material fact even under

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the more demanding test.
During his deposition Gasparini testified that he confronted
his immediate supervisor (O'Fallon) with his concerns regarding
other employees making racial slurs about him. According to
Gasparini, O'Fallon responded by turning his back on Gasparini
and refusing to discuss the issue. O'Fallon was the Boeing
employee that later made the decision to terminate Gasparini. We
find such evidence together with Gasparini's summary judgment
evidence that Boeing's explanation was pretextual sufficient to
create a genuine issue of material fact regarding whether
unlawful discrimination was the motivation behind Gasparini's
termination. Therefore, we conclude that the district court's
grant of summary judgment was erroneous and remand for further
proceedings.
CONCLUSION
For the reasons set forth above, we REVERSE the district
court's summary judgment and REMAND the case for further
proceedings.

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