* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60850

Summary Calendar

ERIC DILWORTH

Plaintiff - Appellant

v.

CONTINENTAL CONSTRUCTION COMPANY INC

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:05-CV-338

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Eric Dilworth brought suit against his former employer, Continental

Construction Company, Inc. (“Continental”), alleging discrimination on the basis

of race in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C.

§ 1981. The case was tried to a jury, which returned a verdict in favor of

Continental. The district court entered a take-nothing judgment against

Dilworth, who now appeals. For the reasons that follow, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

June 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-60850

1 Fine grading is generally laborer’s work, not carpenter’s. At the Iuka site it involved

spreading and leveling gravel so that a concrete slab of uniform thickness could be poured. 

2

I. Background

Continental hired Dilworth in June 2005 as a general laborer at a

construction site in Iuka, Mississippi. Dilworth, who was one of about a dozen

general laborers at the Iuka site, assisted the skilled workers (such as

carpenters and ironworkers) and performed various other tasks as needed. On

the Friday of Dilworth’s first week on the job, he was called into the

superintendent’s office and fired.

The reasons for the firing were disputed. Continental averred that it was

the company’s practice to watch a new hire for the first few days to ensure that

he was competent, and that in accordance with this practice, Continental’s

foreman and superintendent at the Iuka site observed Dilworth during the

course of his first week on the job and came to the conclusion that his work ethic

was not adequate and that he was failing to perform his duties. For example,

Continental claimed that on several occasions, Dilworth was supposed to be fine

grading an area to allow for the carpenters to build forms for pouring a concrete

slab, but stood around watching and not working, which required the carpenters

to perform the task themselves.1

Dilworth, on the other hand, claimed that the firing was motivated by his

race (Dilworth is black). According to Dilworth, he was one of the laborers who

actually was working during the periods in question, while several other white

laborers were standing around and not working, and yet Dilworth was the only

one who was fired.

A few weeks after he was fired, Dilworth filed a charge of discrimination

against Continental with the Equal Employment Opportunity Commission

(“EEOC”), claiming that Continental had discriminated against him on the basis

of his race. The EEOC dismissed Dilworth’s charge and issued him a right-to-
No. 07-60850

3

sue letter. Dilworth subsequently filed suit against Continental in the United

States District Court for the Northern District of Mississippi. In his complaint,

Dilworth alleged that he was fired because of his race, in violation of Title VII

of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981. Continental

moved for summary judgment, but its motion was denied by the district court,

which found that a genuine issue of material fact existed concerning

Continental’s reasons for firing Dilworth. The case was then tried to a jury on

June 4–5, 2007. During the trial, conflicting evidence was presented regarding

the circumstances surrounding, and the reasons for, Dilworth’s firing. The jury

ultimately returned a verdict in favor of Continental, and the district court

entered a take-nothing judgment against Dilworth. A timely notice of appeal

was filed by Dilworth.

II. Discussion

Claims of racial discrimination brought under Title VII or § 1981 are

considered “under the same rubric of analysis.” Raggs v. Miss. Power & Light

Co., 278 F.3d 463, 468 (5th Cir. 2002) (citations omitted). Under the familiar

McDonnell Douglas burden-shifting framework,the plaintiff mustfirst establish

a prima facie case of discrimination by demonstrating that he was: “(1) a

member of a protected class; (2) qualified for the position held; (3) subject to an

adverse employment action; and (4) treated differently from others similarly

situated.” Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005)

(citing Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001)). The burden then

shifts to the defendant to proffer a legitimate, non-discriminatory reason for the

action. Id. (citing Frank v. Xerox Corp., 347 F.3d 130, 137 (5th Cir. 2003)). If the

defendant satisfies its burden, the burden shifts back to the plaintiff to show

that the proffered reason or reasons are pretextual. Id. (citing Frank, 347 F.3d

at 137). “Although the evidentiary burdens shift between the parties in this

framework, ‘[t]he ultimate burden of persuading the trier of fact that the
No. 07-60850

4

defendant intentionally discriminated against the plaintiff remains a[t] all times

with the plaintiff.’” Raggs, 278 F.3d at 468 (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Finally, when a full trial on

the merits has been conducted, as is the case here, our focus is not on the

plaintiff’s prima facie case or the McDonnell Douglas framework, but on the

ultimate question whether the record contains sufficient evidence to supportthe

jury’s finding of race discrimination or no race discrimination. See id.

Continental first argues that Dilworth, in his appellate brief, has not

presented a clear statement of the issues or alleged any error committed by the

district court, and that his appeal should therefore be dismissed for failure to

comply with Fifth Circuit Rule 28. We disagree. Dilworth, though represented

by counsel in the district court, is proceeding pro se on appeal. “Briefs by pro se

litigants are afforded liberal construction, though even pro se litigants must

brief arguments to preserve them.” Johnson v. Quarterman, 479 F.3d 358, 359

(5th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Yohey v.

Collings, 985 F.2d 222, 224–25 (5th Cir. 1993)). While Dilworth’s brief is

perhaps not as clear as it could be, we understand it to advance a challenge to

the sufficiency of the evidence supporting the jury’s verdict against him.

Specifically,the “Summary ofthe Argument” section of Dilworth’s brief discusses

issues relating to the evidence at trial of Dilworth’s performance of his work

duties vis-à-vis the performance of other laborers, as well as the testimony of a

Continental employee who described the circumstances of Dilworth’s

employment and firing. These issues are relevant to an issue of material fact

that was identified by the district court in its denial of Continental’s summary

judgment motion and that was a disputed issue at trial—whether Continental’s

reason for firing Dilworth was merely a pretext for racial discrimination.

We will therefore proceed to the merits of Dilworth’s appeal. Before we do

so, though, we must determine the proper standard of review. “Challenges to
No. 07-60850

5

the sufficiency of the evidence must be raised in a [Federal Rule of Civil

Procedure 50(a)] motion for judgment as a matter of law before submission ofthe

case to the jury.” United States for the Use of Wallace v. Flintco Inc., 143 F.3d

955, 960 (5th Cir. 1998). Continental asserts that Dilworth failed to file such a

motion at trial on the issue of the sufficiency of the evidence, and that, having

failed to preserve this issue for appeal, the appropriate standard of review is

plain error. We have reviewed the record and confirmed that Dilworth indeed

failed to move for judgment as a matter of law on the issue of the sufficiency of

the evidence before the case was submitted to the jury. We must therefore

consider Dilworth’s current challenge to the sufficiency of the evidence under the

plain error standard, where reversal is proper “only if the judgment complained

of results in a ‘manifest miscarriage of justice.’” Id. at 963–64 (quoting McCann

v. Tex. City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993)). “On plain error

review ‘the question before this Court is not whether there was substantial

evidence to support the jury verdict, but whether there was any evidence to

support the jury verdict.’” Id. at 964 (quoting McCann, 984 F.2d at 673)

(emphasis in original). “If any evidence supports the jury verdict, the verdict

will be upheld.” Id. (citing Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir.

1996)) (emphasis in original).

After hearing the evidence presented during the two days of trial, and then

receiving an instruction from the district court regarding Dilworth’s burden of

proof, the jury determined that Continental had not discriminated against

Dilworth on the basis of race. Our review of the record convinces us that there

was evidence in support ofthis determination. The main issue in dispute at trial

concerned whether Continental’s proffered reason for firing Dilworth—that his

work effort was not adequate and that he was failing to perform his job

duties—was a pretext for race discrimination. Continental presented the

testimony of the foreman and superintendent at the Iuka job site, who testified
No. 07-60850

6

to: (1) Continental’s practice of observing new hires to determine if they are

competent; (2)their own observations of Dilworth’s performance of his job duties;

(3) Dilworth’s job performance compared to the performance of other laborers;

and (4) the reasons for the decision to fire Dilworth. For example,

superintendent Wayne Ross explained Continental’s practice of observing and

evaluating new hires and related his own observations of Dilworth:

Ross: Well, when [job applicants] come in, we just ask them, you

know, if they’ve been in construction work before. And if they have, we

ask them what they did, how long they were in it. That’s pretty much it.

We don’t take an application or anything like that. . . .

Counsel: But you give them a shot to see if they can do what they’re

telling you they can do?

Ross: Yes, ma’am.

Counsel: And after you give them this opportunity to work, what do you

do?

Ross: Well, we observe them. * * * The next couple of days [after the

applicant is hired] is when you really start, you know, taking a look at

them to see. Because in this period of time, they’re adjusting. They’re

beginning to fall in with the rest of the people and get the work done.

Counsel: And what did you notice about Mr. Dilworth during those next

couple of days?

Ross: Well, the second day . . . . I noticed that he was -- he just

didn’t seem like he had a lot of enthusiasm. He didn’t really seem like he

was getting into the work with the experience that he said he had.

And the third day, I -- in my rounds, I noticed that he was just

standing looking while the other people were working . . . .

* * *

Counsel: Was he getting the job done?

Ross: Well, he was working with the rest of them, but he wasn’t

doing what they were doing.
No. 07-60850

7

Counsel: Was he pulling his share of the weight on the crew?

Ross: No, ma’am.

Similarly, foreman Thomas Sullivan testified as follows:

Sullivan: Well, the first couple of days, you know, I noticed he was

working; but he wasn’t working real good.

Counsel: What do you mean by that?

Sullivan: He didn’t show a lot of interest in his work. * * * He was going

through the motions; but he really wasn’t, you know, putting his heartinto

his work.

The testimony of Ross and Sullivan, which offers a legitimate, nondiscriminatory reason for Dilworth’s firing, provides an evidentiary basis

for the jury’s determination that Continental did not discriminate against

Dilworth. Therefore, under the plain error standard, we must affirm the

district’s court judgment entered in accordance with the jury’s verdict.

III. Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED. All pending motions are DENIED.