* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-60332

Summary Calendar

___________________

CALVIN CLAYTON,

Plaintiff-Appellant,

versus

FRITO-LAY, INC.,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Mississippi, Jackson

(3:95-CV-75-LN)

 

January 10, 1997

Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.*

GARWOOD, Circuit Judge:

Calvin Clayton (Clayton) appeals the district court’s grant of

summary judgment to Frito Lay, Inc., in his Title VII

discriminatory termination lawsuit. We affirm.

Facts and Proceedings Below

On June 18, 1994, Clayton, who is black, walked out of his job

at the Frito-Lay plant in Jackson, Mississippi, shortly after 5:00

AM, roughly two hours prior to the end of his shift at 7:00 AM.

Clayton left work without permission and failed to clean up his
2

work area or punch out on the time clock, violating Frito-Lay’s

Rules of Conduct. Frito Lay terminated Clayton’s employment based

upon this infraction of its formal, published rules. The rules

authorized immediate discharge for such an infraction. Clayton was

replaced by a black person.

Clayton subsequently filed this lawsuit, alleging that he was

terminated based upon his race, a violation of Title VII of the

Civil Rights act of 1964. 42 U.S.C. § 2000e et seq. After the

November 30, 1995, close of discovery, Frito Lay moved for summary

judgment based upon Clayton’s failure to adduce any evidence of

disparate treatment. Clayton responded on January 12, 1996; the

response merely directed the district court’s attention to the

prior findings of another judge of the court regarding Frito Lay’s

history of discriminatory practices in Lindsey v. Frito-Lay, Inc.,

No. 3:91-cv-629(W)(S) (S.D. Miss. Oct. 10, 1994).

On February 23, 1996, the district court entered a memorandum

opinion and order granting Frito-Lay summary judgment. In this

opinion the district court rejected the Lindsey findings as

evidence adequate to make out Clayton’s prima facie case, noting

that Frito Lay “has demonstrated that the management and

supervisory personnel at the plant are completely different from

those who were employed at the time of the actions giving rise to

the previous case” and, additionally, that Clayton, who had been

hired in 1992, was not employed by Frito-Lay in March or April 1991

when the conduct underlying the Lindsey lawsuit occurred. The
1 Clayton on April 3, 1996, submitted, without any motion or

pleading, a March 29 affidavit from Bradley relating an incident on

March 22, 1996, in which Stouffer allegedly refused to obey the

instructions of another black supervisor, a dischargeable offense.

There is no statement as to whether anything resulted from this

incident or, if so, what. For all the affidavit reflects, Stouffer

could have been fired by the time it was filed.

3

court also noted that Clayton did not dispute that he had violated

Frito Lay’s published rules that authorized immediate discharge for

such an infraction.

On March 8, 1996, Clayton filed a motion asking that the

district court arrest or amend the judgment, grant a new trial, or

reconsider the grant of summary judgment. Clayton attached to this

motion the affidavit, made on February 8, 1996, of Irvin Bradley,

an employee at Frito-Lay. Bradley averred that on December 19,

1995, he “was informed by Don Coleman,” a black supervisor at the

plant, that a white employee, James Stouffer, had committed roughly

the same infraction as Clayton, and that Stouffer had been

“returned to work December 22, 1995.” Frito-Lay responded by

challenging the timeliness of the affidavit’s submission, noting

that Bradley was referred to as a possible witness in

interrogatories Clayton answered during discovery. Clayton’s

unsworn motion stated that the incident occurred “after the close

of discovery” and asserted that the evidence was “newly

discovered.”1

On April 16, 1996, the district court denied Clayton’s motion.

The district court, observing that Clayton had never explained how

or when he learned of the information contained in the Bradley
2 Clayton’s first point of error is that the district court

erred in accepting the Mayberry court’s formulation of what

evidence is required to establish a prima facie case under Title

VII for termination based upon a rule infraction. He submits that

the district court instead should have “scrutinized the evidentiary

offerings for indicia of racial prejudice at work.” Byrd v.

Roadway Express, 687 F.2d 85, 86 (5th Cir. 1982). As our ensuing

treatment of the other issues raised on appeal reveals, however, we

4

affidavit, found that his failure to timely submit the affidavit

was due to a failure of due diligence. Clayton timely appeals both

the grant of summary judgment and the denial of his subsequent

motion.

Discussion

In reviewing a grant of summary judgment we review the record

de novo. Wittorf v. Shell Oil Co., 37 F.3d 1151, 1154 (5th Cir.

1994). We apply the same legal standards which governed the

district court’s determination(s). Id. “In work-rule violation

cases, a Title VII plaintiff may establish a prima facie case by

showing ‘either that he did not violate the rule or that, if he

did, white employees who engaged in similar acts were not punished

similarly.’” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090

(5th Cir. 1995), quoting Green v. Armstrong Rubber Co., 612 F.2d

967, 968 (5th Cir.), cert. denied, 101 S.Ct. 227 (1980). Because

Clayton does not contend that he did not violate Frito-Lay’s

published rules in a manner authorizing his discharge, we consider

his arguments that his submissions were competent to demonstrate

that “white employees were treated differently under circumstances

‘nearly identical’ to his.” Id. (citations omitted).2
find that Clayton failed to present any competent evidence to make

out his prima facie case. In any event, as the district court

noted, there was no basis for finding Frito Lay’s reasons for

discharging Clayton pretextual.

5

Clayton contends that the district court erred in refusing to

accept the findings made in the Lindsey case as evidence in the

instant litigation. Clayton’s argument, made expressly to the

district court and implicitly in his appellate brief, is that

Frito-Lay should be collaterally estopped from denying the findings

of past discrimination made in Lindsey.

Federal law governs the preclusive effect of a prior federal

judgment. Stovall v. Price Waterhouse Co., 652 F.2d 537, 540 (5th

Cir. 1981). The Supreme Court has held that principles of federal

common law do not necessarily preclude such an “offensive” use of

collateral estoppel when the plaintiff parties are not identical or

in privity. Parkland Hosiery Co. v. Shore, 99 S.Ct. 645 (1979).

This Circuit, however, “has recognized that district courts have

broad discretion to determine the availability of offensive

collateral estoppel.” Hauser v. Krupp Steel Producers, Inc., 761

F.2d 204, 207 (5th Cir. 1985), citing Nations v. Sun Oil Co., 705

F.2d 742, 744 (5th Cir.), cert. denied, 104 S.Ct. 239 (1983). We

have also stated that offensive collateral estoppel is “a doctrine

of equitable discretion to be applied only when the alignment of

the parties and the legal and factual issues raised warrant it.”

Nations, 705 F.2d at 744. For this reason, the district court

should not allow the use of offensive collateral estoppel “when to
3 The Supreme Court in Parklane discussed particular

circumstances which might result in unfairness to a defendant,

including cases where the first suit involved “small or nominal

damages” such that the defendant would have no reason to engage in

a vigorous defense, cases where the judgment relied on is

inconsistent with previous judgments against the defendant, and

cases where the second suit offers the plaintiff(s) procedural

advantages not present in the first suit. As we have observed,

however, “[t]he Parklane Court did not consider its list of

considerations exhaustive.” Chemetron Corp. v. Business Funds,

Inc., 682 F.2d 1149, 1189-1190 (5th Cir. 1982) (listing additional

circumstances of unfairness culled from prior circuit

jurisprudence), vacated on other grounds, 103 S.Ct. 1245 (1983).

Compare In the Matter of Lewisville Properties, Inc., 849 F.2d 946,

949 (5th Cir. 1988); United Association of Journeymen v. NLRB, 747

F.2d 326, 331-332 (5th Cir. 1984); Nations, 705 F.2d at 744; Hicks

v. Quaker Oats Company, 656 F.2d 1158, 1168-1170 (5th Cir. 1981).

6

do so would be unfair to the defendant.”3 Rufenacht v. Iowa Beef

Processors, Inc., 656 F.2d 198, 202 (5th Cir. 1981), cert. denied,

102 S.Ct. 1279 (1982). See also Recoveredge v. Pentecost, 44 F.3d

1284, 1291 n.12 (5th Cir. 1995).

The district court did not abuse its broad discretion in

declining to hold Frito-Lay bound by the findings made in Lindsey.

The conduct involved in Lindsey transpired during a time frame

antecedent to 1992, when Clayton was hired, and the record reveals

that Frito-Lay has changed its management staff at the plant where

Clayton worked since the “historical” incidents recounted in

Lindsey occurred. We conclude that under the facts of this case it

would be patently unfair to impute the past actions of former

employees to Frito-Lay.

Furthermore, while Clayton does not cite any other specific

legal grounds which justify consideration of the Lindsey findings
4 "In order to defeat a properly supported motion for summary

judgment, the nonmoving party must direct the court’s attention to

admissible evidence in the record which demonstrates that it can

satisfy a fair-minded jury that it is entitled to a verdict in its

favor.” Conticommodity Services, Inc. v. Ragan, 63 F.3d 438, 441

(5th Cir. 1995) (emphasis added) (citations omitted) (internal

quotation marks omitted).

7

as competent summary judgment evidence,4 our independent

examination of the Lindsey opinion indicates that even were those

findings admissible they would not suffice, given the elapsed time

and intervening changes in Frito-Lay’s personnel, to make out

Clayton’s prima facie case of discriminatory termination. Hebert

v. Monsanto Co., 682 F.2d 1111, 1120-1126 (5th Cir. 1982). In the

absence of some showing that Frito-Lay’s new management has

perpetuated, adopted, or revived the discriminatory practices

uncovered in Lindsey those findings demonstrate nothing more than

“unfortunate events in history.” United Airlines, Inc. v. Evans,

97 S.Ct. 1885, 1889 (1977).

The passage of years, the intervening change in plant

management, and the fact that those involved in Clayton’s

termination were not involved in the Lindsey incidents preclude the

latter from meeting the Mayberry “circumstances ‘nearly identical’”

test. See, e.g., Mitchell v. Toledo Hospital, 964 F.2d 577, 583

(6th Cir. 1992) (“. . . the individuals with whom plaintiff seeks

to compare his/her treatment must have dealt with the same

supervisor”); Timms v. Frank, 953 F.2d 281, 287 (7th Cir. 1992)

(“Most importantly, Krackenberger’s and [plaintiff] Timms’s
8

applications were considered by different people. Krackenberger

was reinstated by Frank Santoro; Timms was denied by Burdette

Person. . . . As to decisions by Person alone, there is no way to

infer that the denial of Timms’s request was discriminatory . .

.”); Little v. Republic Refining Co., Ltd., 924 F.2d 93, 97 (5th

Cir. 1991) (“Little must show that Republic gave preferential

treatment to a younger employee under ‘nearly identical’

circumstances. . . . The circumstances of Little and Turner do not

meet this test. Boyd did not counsel Little because he was not

Little’s supervisor; Boyd was, however, Turner’s supervisor and

thus had authority to provide job counseling”); Jones v. Gerwens,

874 F.2d 1534, 1541 (11th Cir. 1989) (“. . . disciplinary measures

undertaken by different supervisors may not be comparable for

purposes of Title VII analysis”).

Clayton, persisting in his attempt to bootstrap the Lindsey

findings into his prima facie case, contends that the district

court erred by inferring that Frito-Lay’s employment practices had

changed because Frito-Lay produced no evidence of that fact.

Clayton charges that this action violates the rule attendant to

summary judgment proceedings that all reasonable inferences are to

be resolved in favor of the nonmovant. Reid v. State Farm Mut.

Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Our review of

the record reveals, however, that Frito-Lay submitted to the

district court the affidavit of James Michael McGuffie, Plant

Manufacturing Manager. This affidavit details the changes in the
5 Clayton asserts that he was unable to timely submit the

affidavit because the incident related in the affidavit occurred

after discovery had ended. As the district court noted, however,

this still does not explain why Clayton was unable to uncover this

information, which after all came from the only potential witness

cited by Clayton during discovery, and present it to the district

court prior to the summary judgment ruling. We are particularly

intrigued by the fact that the affidavit was made on February 8,

1996, more than two weeks prior to the district court’s judgment,

but not submitted until the March 8, 1996, nearly two weeks after

the district court’s ruling. Our speculations aside, the

circumstances surrounding the discovery of the information

contained in the Bradley affidavit remain undisclosed on this

record.

9

management hierarchy at the Jackson plant subsequent to the Lindsey

litigation. Clayton has done nothing to rebut, controvert, or

otherwise undermine the averments contained in the McGuffie

affidavit. See Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993)

(nonmovant “may not rest upon mere allegations or denials in its

pleadings, but must set forth specific facts showing the existence

of a genuine issue for trial”). Accordingly this contention, like

those preceding, is meritless.

Finally, Clayton challenges the district court’s denial of his

motion to arrest or amend the judgment, grant a new trial, or

reconsider the judgment. We review the district court’s decision

for an abuse of discretion. Rollins v. Fort Bend Independent

School Dist., 89 F.3d 1205, 1222 (5th Cir. 1996). Clayton has not

provided any explanation concerning why he was unable to present

the Bradley affidavit to the district court in a timely manner,5

and the record reveals no facts which might render Clayton’s

ignorance of that information excusable. Washington v. Patlis, 916
10

F.2d 1036, 1039 (5th Cir. 1990); Jones v. Western Geophysical

Company of America, 669 F.2d 280, 285 (5th Cir. 1982).

Additionally, the Bradley affidavit consists largely of

inadmissible hearsay and therefore does not comprise competent

summary judgment evidence. Rock v. Huffco Gas & Oil Co., Inc., 922

F.2d 272 (5th Cir. 1991). The district court did not abuse its

discretion.

For the preceding reasons, the judgment of the district court

is

AFFIRMED.