IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20642

Summary Calendar

SHERWIN T. WRIGHT, 

 Plaintiff - Appellant

v.

CHEVRON PHILLIPS CHEMICAL COMPANY, L.P., 

 Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:15-CV-2363

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Sherwin T. Wright appeals the grant of summary judgment in favor of 

his employer, Chevron Phillips Chemical Company, L.P., (“Chevron Phillips”)

on his discrimination claims under Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 1981, and the Texas Commission on Human Rights Act, TEX. LAB.

CODE § 21.051(1). Wright claims that he was discriminated against because of 

his race and in retaliation for complaining about racial discrimination. 

Because the evidence does not support a finding that the alleged 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 1, 2018

Lyle W. Cayce

Clerk

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discriminatory actions were due to his race or in retaliation for complaining of 

racial discrimination, we AFFIRM.

I. Background

Wright, an African-American, worked for Chevron Phillips at its 

Pasadena, Texas, plant as a maintenance electrician from approximately 2008 

until December 2014, when Chevron Phillips terminated his employment. His 

responsibilities included assisting the operations group in “turnaround 

projects” that required shutting down equipment in a section of the facility so 

that maintenance and project work could be performed. One of the steps in a 

turnaround project is referred to as “lock, tag, try,” which requires “deenergizing” the equipment, locking it, and tagging it so that it is in a safe state 

and cannot come back on. Sometimes, the de-energizing process requires 

disconnecting the wires going from a breaker to a motor, and those wires are 

referred to as “T-leads.” To determine the scope of the work that needs to be 

completed, employees review an isolation list that identifies the equipment 

components that need to be isolated. The employee who performs the work is 

supposed to initial the isolation list to indicate the work for that equipment 

has been completed. Wright regularly worked on turnaround projects and was 

familiar with the procedures. 

Around late September 2014, the Maintenance Electrical Supervisor, 

Darryn Barnes, who is also African-American, asked Wright to assist the 

operations group with the “lock, tag, try” process on a turnaround project.

Because this particular project involved replacing breakers, the isolation list 

specifically required an electrician to disconnect the T-leads. This directive 

was highlighted in yellow and written in all capital letters. Although Wright 

initialed the isolation list, he never disconnected the T-leads and never 

removed his initials from the isolation list.

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It was subsequently discovered that Wright did not disconnect the Tleads despite his indication to the contrary on the isolation list. Wright was 

confronted about the situation at a meeting after which he was suspended 

without pay pending an investigation into the matter. 

Several weeks into his suspension, Wright contacted Chevron Phillips’s 

CEO and asked if he would look into whether the suspension was being 

handled correctly because no one could tell him how long he was going to be 

suspended. Wright also expressed disappointment at the way Chevron Phillips 

was treating him. Shortly thereafter, a human resources employee met with 

Wright and presented him with a “Final Written Warning and Two-week 

suspension” letter, which explained the company’s conclusion that Wright had 

violated plant rules when he signed off on the isolation list without 

disconnecting the T-leads. As a consequence, Wright’s continued employment 

was contingent upon completing a recertification process and not violating any 

additional plant rules. Wright signed the letter, and under his signature 

notated his disagreement with some of the letter’s factual statements. 

A couple weeks later, Chevron Phillips received a report that Wright had 

fallen asleep in his cubicle while reviewing materials as part of the 

recertification process. After an investigation, Chevron Phillips concluded that 

the report was accurate and issued a “Last Chance Letter,” which Wright 

signed. The letter informed Wright that he would be suspended for three days 

without pay and must, among other things, avoid any warnings for his 

attendance or tardiness in order to retain his employment with the company. 

A few days after signing the Last Chance Letter, Wright failed to appear 

at work and did not notify his supervisor or anyone else at the company. When 

his supervisor finally reached him, Wright said he was sick and had advised a 

third party that manages extended leave and certain employee medical leave. 

After an investigation, Chevron Phillips determined that Wright was aware of 

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company policy requiring employees to notify their supervisors when taking off 

work, and that Wright had violated that policy. As a result, Chevron Phillips 

terminated Wright’s employment. 

Wright sued Chevron Phillips for race discrimination and retaliation 

under Title VII, 42 U.S.C. § 1981, and the Texas Commission on Human Rights 

Act under § 21.051(1) of the Texas Labor Code. The parties agreed to conduct 

all proceedings before a magistrate judge. The magistrate judge granted 

summary judgment in favor of Chevron Phillips on all claims, and Wright 

timely appealed.1 

II. Discussion2

A. Discrimination Claim

“Title VII prohibits discrimination ‘because of’ a protected characteristic, 

including race.” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 

2016) (quoting 42 U.S.C. § 2000e–2(a)(1)). Discrimination can be established 

through either direct or indirect evidence. Laxton v. Gap Inc., 333 F.3d 572, 

578 (5th Cir. 2003). When considering indirect evidence of discrimination, we

apply the familiar McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

 

1 “We review a grant of summary judgment de novo, applying the same standard as 

the magistrate judge.” Henley v. Edlemon, 297 F.3d 427, 429 (5th Cir. 2002). “Summary 

judgment is appropriate if the moving party can show that ‘there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.’” United States 

v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting FED. R. CIV. P. 56(a)); 

Douglas v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc)). 2 The analysis under both Title VII and § 1981 is identical. Jones v. Robinson Prop. 

Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005). Moreover, because one of the general purposes 

of the Texas Commission on Human Rights Act is to “provide for the execution of the policies 

of Title VII,” Texas courts rely on federal law to interpret the statute. See In re United Servs. 

Auto. Ass’n, 307 S.W.3d 299, 308–09 (Tex. 2010). Therefore, we discuss only Title VII law 

when evaluating Wright’s claims. See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 

(5th Cir. 2012) (noting that race discrimination and retaliation claims under all three 

statutes “are analyzed under the same standard”); see also Satterwhite v. City of Houston, 

602 F. App’x 585, 589 (5th Cir. 2015) (per curiam) (“[F]or the same reasons [plaintiff’s] Title 

VII claim fails, his TCHRA claim fails.”).

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burden-shifting framework, which requires the plaintiff to first establish a 

prima facie case of discrimination by meeting four prongs. Laxton, 333 F.3d at

578. 

Relevant here is the fourth prong requiring that the plaintiff provide

evidence that he “was replaced by someone outside the protected class, or, in 

the case of disparate treatment, show that others similarly situated were 

treated more favorably.” Outley, 840 F.3d at 216 (quoting Okoye v. Univ. of 

Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001)). Both the 

comparator and the conduct must be “nearly identical” (except for the protected 

characteristic) to the person and situation in question yet the two yielded 

dissimilar results. Id. at 217–18 (quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 

253, 260 (5th Cir. 2009)). 

Wright argues that he was treated less favorably than others similarly 

situated, specifically “other persons involved in the . . . incident giving rise to 

[his] suspension,” any other employee who had ever returned to work from a 

suspension, and two employees who were terminated for intentionally sleeping 

on the job. Even assuming arguendo that Wright provided sufficient evidence 

in support of the first three prongs of his prima facie case, he has failed to 

create a genuine issue of material fact as to the fourth prong. He points to no

evidence that any of his comparators were outside his protected class,3 held 

 

3 In his brief in opposition to summary judgment before the magistrate judge—but not 

in his briefing on appeal—Wright identified two individuals involved with the suspension 

incident, Darryn Barnes and Billy Donnell, as being white. However, he provided no evidence 

to support this assertion. “As a general rule, ‘[w]hen evidence exists in the summary 

judgment record but the nonmovant fails even to refer to it in the response to the motion for 

summary judgment, that evidence is not properly before the district court.’” Outley, 840 F.3d 

at 217 (quoting Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)). Nevertheless, 

Chevron Phillips presented a declaration from Barnes to the magistrate judge stating that 

he is an African-American. But there still remains no evidence about Donnell.

In the same brief—but not in his briefing on appeal—Wright also pointed to evidence 

that there had only been two previous African-American union members of the “International 

Brotherhood of Electrical Workers” at Wright’s workplace, but he did not point to specific 

evidence that any of the non-black union members had previously returned from suspension. 

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the same job responsibilities as he did, shared the same supervisor or had their 

employment status determined by the same person, or had essentially 

comparable violation histories. Moreover, there is no evidence that anyone else 

received dissimilar treatment for “nearly identical” conduct. Though there was 

evidence of other employees sleeping on the job receiving dissimilar treatment, 

those employees engaged in conduct more egregious than Wright’s and thus 

received less favorable treatment than Wright did, as the evidence indicates 

they were terminated rather than given a last chance letter. Wright does not 

argue that he was replaced with someone outside of his protected class. 

Accordingly, Wright has failed to raise a material fact issue regarding the 

fourth prong of his prima facie case. See id. at 218.4 Wright’s discrimination 

claim cannot survive summary judgment on this record.

B. Retaliation Claim

We also apply the McDonnell Douglas burden-shifting framework to 

retaliation claims. See Willis v. Cleco Corp., 749 F.3d 314, 317–18 (5th Cir. 

2014). A plaintiff establishes a prima facie case of retaliation by showing 

“(1) he engaged in an activity protected by Title VII; (2) he was subjected to an 

adverse employment action; and (3) a causal link exists between the protected 

activity and the adverse employment action.” Id. (quoting Davis v. Dall. Area 

Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004)). We have “consistently held 

 

Finally, there is no record evidence of the race of the two employees who were fired for 

intentionally sleeping on the job.

4 Alternatively, Wright argues that we should conclude that he suffered adverse 

employment actions due to his race because there is evidence that, nearly a month before his 

suspension, someone hung a noose in the plant where he worked, and Wright was the only 

African-American electrician. But the evidence of this incident does not indicate that 

Chevron Phillips’s decision-makers evinced racial animus. It is quite the contrary. The 

evidence referred to by Wright consists of a letter from the plant manager notifying 

employees of the incident, expressing zero tolerance for the egregious conduct, and seeking 

to find and punish the perpetrator. There is no evidence suggesting a connection between 

this incident and Chevron Phillips’s actions against Wright.

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that a vague complaint, without any reference to an unlawful employment 

practice under Title VII, does not constitute protected activity.” Paske v. 

Fitzgerald, 785 F.3d 977, 986 (5th Cir. 2015) (quoting Davis v. Dall. Indep. Sch. 

Dist., 448 F. App’x. 485, 493 (5th Cir. 2011) (per curiam) (collecting cases)). 

Wright concedes that he did not report any incidents of racial 

discrimination to Chevron Phillips. His only allegedly protected activity was 

sending an e-mail to Chevron Phillips’s CEO about whether his suspension 

was being handled correctly because no one could tell him how long he was 

going to be suspended and his expectation for Chevron Phillips to treat him 

better. There was no suggestion that his concerns were related to race. 

Accordingly, he failed to point to sufficient evidence supporting the first prong 

of his prima facie case. See id. (affirming summary judgment on a Title VII 

retaliation claim where there was no evidence the plaintiff spoke out about 

race discrimination).

AFFIRMED.

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