* Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not

be published and is not precedent except under the limit ed ci rcumst ances set forth in Fifth Circuit

Rule 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 00-31240

(Summary Calendar)

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AVYON GARR,

Plaintiff - Appellant,

versus

WESTERN SIZZLER; ET AL,

Defendants

KEITH ALBRITTON; WESTERN SIZZLIN; WINSTON OF

MONROE INC.

Defendants - Appellees

Appeal from the United States District Court

For the Western District of Louisiana

98-CV-2217

September 18, 2001

Before JOLLY, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM: *-2-

Avyon Garr (“Garr”) appeals pro se the bench verdict denying his wrongful discharge and

hostile environment claims based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

et seq. We affirm.

Garr, an African-American, was hired as an assistant manager trainee at the Western Sizzlin,

a r est aurant o perated by Winston of Monroe, Inc. (“Winston”). Less than thirty days into his

employment, Garr was dismissed by David Howard (“Howard”), the store manager, for poor work

performance. Over a two week period, Howard had filed seven disciplinary reports against Garr,

stating that he was repeatedly tardy and failed to follow clean-up and closing procedures. Howard

later commenced a Title VII action agai nst Western Sizzlin, Winston and Keith Albritton, a fiftypercent owner of Winston (collectively, the “Appellees”).

At the bench trial, Garr made numerous allegations of blatant racial discrimination by Howard

and the Appellees. He claimed, amo ng o ther things, that Howard used racial epithets to describe

African-American customers; threw away job applications filed by African-Americans; and informed

Garr t hat he was being terminated to allow a white person to take his position. Howard and t he

Appellees disputed these allegations, and denied that Garr had been dismissed because of his race.

The district court rejected Garr’s version of the events in its finding of facts, and ruled that he was

no t dismissed on the basis of race. The court also rejected Garr’s hostile environment claim.

Although it found that Howard had once used a racially derogatory term in his private journal, the

court held that a stray racial remark cannot constitute a hostile environment.

Garr now appeals the district court’s verdict mainly on the sufficiency of the evidence ground.

We review a district court's factual findings in a Title VII case for clear error. See EEOC v. Clear

Lake Dodge , 60 F.3d 1146, 1151 (5th Cir.1995).-3-

As an initial matter, he claims that the court violated Rule 52 of the Federal Rules of Civil

Procedure by failing to make the factual findings on a separate document from the conclusions of the

law. Garr misreads the rule. It merely states that “the court shall find the facts specially and state

separately its conclusions of law”; it does not require the court to file its factual findings on a different

piece of paper. See F ED . R. C IV . P. 52(a).

Garr’ s main argument is that the court could not have rendered a verdict in favor of the

Appellees because he had disputed their version of the facts. Garr is mistaken. It is the function of

the district court at bench trial to listen to the testimony of each witness, weigh his or her credibility,

and make factual findings. S ee, e.g., Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 375 (5th

Cir. 2000). In this case, the court held a bench trial, and found the Appellees to be more credible than

Garr. Indeed, “[w]here the court's finding is based o n it s decision to credit the testimony of one

witness over that of another, ‘that finding, if not internally inconsistent, can virtually never be clear

error .’” M igis v. Pearle Vision, Inc.

, 135 F.3d 1041, 1044 n.1 (5th Cir. 1998) (internal citations

omitted).

Garr only makes conclusory statements that the court’s factual findings were erroneous. His

failure to provide deposition or trial tr anscripts precludes us from even reviewing his claim. S ee

Richardson v. Henry

, 902 F.2d 414, 416 (5th Cir. 1990) (“The failure of an appellant to provide a

transcript is a proper ground for dismissal of the appeal.”).

Several weeks after this appeal was filed, Garr filed a “Motion for Appearance Before This

Honorable Court and Request for U.S. District Transcripts of Court Proceedings in This Case.” We

construe the motion as an appeal of the district court’s denial of his request that the governm ent

furnish transcript at its expense. We deny this motion because Garr has waived this issue by failing1 G arr also claims in his brief that the district court admitted hearsay evidence . He,

however, fails to specify the all eged hearsay testimony or to include the trial transcripts, thus

precluding us from reviewing this issue. Garr additionally argues that the court denied him his right

to a trial by jury. The record reflects that Garr had waived his right to a jury trial during pretrial

conference, but then later decided against the waiver. The court ordered Garr to file a motion to

reinstate the jury trial, but he apparently failed to do so.

-4- to present it in his original brief. See United States v. Green

, 46 F.3d 461, 465 n.3 (5th Cir. 1995).

Moreo ver, t he motion would fail on its substantive merits. A party in a civil case can receive

transcripts at the expense of the government if a judge “certifies that the appeal is not frivolous (but

presents a substantial question).” 28 U.S.C. § 753(f). As detailed above, this appeal does not present

any non-frivolous arguments. S ee Norton v. Dimazana

, 122 F.3d 286, 293 (5th Cir. 1997) (refusing

to provide transcripts in part because the underlying claims were frivolous). 1

AFFIRMED. MOTION DENIED.