* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. 1 United States Court of Appeals Fifth Circuit 

## FILED May 11, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-30648

__________________________ JACK O’NEAL, SR. Plaint iff- Appellant,
versus ROADWAY EXPRESS Defendant-Appellee.

___________________________________________________ Appeal from the United States District Court For the Eastern District of Louisiana (No. 2:04-CV-1256)

___________________________________________________ Before REAVLEY, CLEMENT and PRADO, Circuit Judges. PER CURIAM: * Jack O’Neal sued his former employer, Roadway Express, alleging race discrimination and retaliat io n in vio lat io n of 42 U.S.C. § 1981, 42 U.S.C. § 2000e-5 (Ti tle VII), and Loui siana state law. Pursuant to 28 U .S.C. § 636(c)(1), the parti es consented to have a magistrate judge conduct the proceedings and enter final judgment appealable directly to this court. O’Neal voluntarily dismissed2

his state law claims, and the magistrate judge granted summary judgment in favor of Roadway on the § 1981 and Ti

tle VII claims. O’Neal appeals the grant of summary judgment on his Ti tle VII claims. For the following reasons, we affirm. I. Facts and Proceedings On July 15, 20 03, while O’Neal was employed as a truck driver at Roadway, he filed an EEOC charge aga inst his employer. His complaint included allegations regarding a discharge and reinstatement wit hout backpay that occurred between February and June 2003. In particular, he stated that his discharge for outrageous conduct toward a customer was discriminatory and retaliatory. A similarly situated whit e employee who had used prof anit y and was argumentative toward a customer
was not discharged, but O’Neal who black was discharged. Also , he was fir ed i n retaliat io n fo r a gri evance he filed two days before his discharge, which alleged discriminat io n in th e jo b-biddi ng process. The EEOC issued a right-to-sue let ter based on these allegations. In O’Neal’s district court
com plaint , he included the incidents alleged in his EEOC charge as well as a lit any of incidents dati ng before and after the time frame of the incidents alleged in the EEOC charge. II. Standard of Review This court reviews a district court’s grant of summary judgment de novo. Hodges v. Delta Airlines, Inc. , 44 F.3d 334, 335 (5th Cir. 1995). Summary judgment is appropri ate “if th e pleadings, depositions, answers to int errogatori es, and admissions on file, together wit h the affidavit s, if any, show that there is no genuine issue as to any material fact and that th e mo ving party is entitled to a judgment as a mat ter of law.” F ED . R. C IV . P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23 (1986). In determ ining whether there is a genuine issue of materi al fact, all facts must be evaluated in a light mo st favorable to th e non-moving party
. See Matsushita Elec. Indus. Co. v.3

Zenith Radio Corp. , 475 U.S. 574, 587 (1986). III. Analysis A. Allegations Outside of the Scope of the EEOC Charge (1) Allegations Dating Prior to the EEOC Charge Under Ti tle VII, a filing o f an EEOC charge is a condition precedent to the right to sue in district court. See Young v. City of Houston , 906 F.2d 177, 179 (5th Cir. 1990). O’Neal never filed

an EEOC charge regarding the incidents alleged in th e district court com plaint dating prior to the incidents alleged in the EEOC charge. Therefore, they were not ri pe fo r review by th e district court. In addition, because 42 U.S.C. § 2000e-5(e)(1) provides that claims mus t b e filed wit h t he EEOC wit hin th ree-hundred days of the alleged unlawful employment practice, those claims are now timebarred. Had O’Neal put fo rward a hostile work environment claim, this court could have considered the past allegations under a conti nuing vio lat io n theory . See Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117 (2002) (“Provided that an act contri buting to th e [hostile work environment] claim occurs within the filing period, the entire ti me period of the hostile environment may be considered by a court fo r the purposes of determ ining liabilit y. ”). However, th e magistrate j udge ruled that O’Neal failed to allege or put fo rward any evidence to support a hostile work environment claim, and O’Neal fails to contest that ruling on appeal. (2) Allegations Dating After the EEOC Charge The scope of the inquiry at a court hearing in a Title VII action is not limited to th e charge brought before the EEOC; it is limited to the scope of the EEOC invest igation that reasonably can be expected to result from the charge. See Sanchez v. Standard Brands, Inc ., 431 F.2d 455, 466 (5th Cir. 1970); see also Young , 906 F.2d at 179. Because there was no evidence that th e EEOC eit her4

was constructi

vely or actually aware of th e lat er incidents, the magistrate judge concluded that it was not reasonable to expect that th e EEOC would have investigated the incidents alleged to have occurred aft er O’Neal filed his EEOC charge. O’Neal fails t o present any evidence to rebut the magistrate judge’s conclusion on appeal. Accordingly, we affirm th e magistrate judge’s ruling that
an EEOC invest igation of the lat er incidents was not reasonably expected based on th e original EEOC charge. Therefore, the only incidents before this court on appeal that we will consider as the basis of O’Neal’s discrimination and retaliation claims are those alleged in the EEOC charge. B. McDonnell Douglas Analysis Under the McDonnell Douglas burde n shifting framework, a plaintiff alleging racial discriminat io n under Ti

tle VII has the initial burden of making a prima facie case of discriminat io n. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973) ; see also Roberson v. Alltel Info. Servs. , 373 F.3d 647, 651 (5th Cir. 2004). A plaint iff makes a pri ma facie case if he establishes that (1) h e is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside th e protected class or that similarly situated individuals outside the protected class were treated mo re favorably. Okoye v. Univ. of Tex. Health Sci. Ctr. , 245 F.3d 507, 512–13 (5th Cir. 2001). See also McDonnell Douglas , 411 U.S. at 802; Urbano v. Cont’l Airlines, Inc. , 138 F.3d 204, 206 (5th Cir. 1998). Once a plaint i ff has establi shed a prima facie case, the burden of production shifts to the defendant to “articulate some legit imat e, nondiscriminatory reason” fo r th e challenged employment action. McDonnell Douglas , 411 U.S. at 802. If the defendant articulates a legitimate reason, then the burden shift s back to the plaint i ff t o establish t hat the defendant’s reason was pretextual and discriminat io n was the true motivation. See Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir. 2001).5

O’Neal failed to establish that he was treated less favorably than a similarly situated employee outside a protected class. He was discharged aft er he acted belligerently toward a customer, leading the customer to demand that O’Neal never return to it s premises again. O’Neal asserted that a white employee was not discharged when he was banned from Home Depot aft er he got int o an argument wit h a Home Depot receiving manager. However, the magistrate judge concluded that O’Neal’s evidence that a non-protected employee was not treated in t he same fashion was “unsupported conjecture,” which was “not competent summary judgment” evidence. Reviewing the record, we find no evidence to support O’Neal’s claim that a whit e employee was treated more f

avorably than he was treated. In his deposition, Christopher Rivette, Roadway’s New Orleans term

i nal manager, testi fied t hat he had never received a report of a confrontation between a Roadway employee and a Home Depot employee. Rather, he had received one com plaint from Home Depot about a white Roadway employee, but the complaint stated that the employee’s trailer was dirty and the employee took too lo ng to prepare his trailer for Home Depot’s freight to be unloaded. If the employee could not have his freight ready before he arri ved at Home Depot, the store di d not want hi

m t o deliver for them anymore. Because this employee’s situation is not analogous to O’Neal’s situation—he did not verbally confront and use prof anit y toward a customer and a Roadway supervisor—this court cannot conclude that similarly situated employees outside of a protected class were treated more favorably than O’Neal. Therefore, O’Neal failed to establish a pri ma facie case of discrimination. In addition, even if we assume he established a pri ma facie case, he presented no evidence to suggest that the legit imat e, no n-di scriminat ory explanation for his discharge, i .e. , that he was discharged for outrageous conduct toward a customer, was pretextual. O’Neal produced neither6

direct nor circumstantial evidence that the true mo ti vation f or hi s discharge was discriminatory or retaliat ory . Alt hough O’Neal filed a gri evance two days before his discharge, th e deposition testi mo ny of Rivette and Eric Burleigh, O’Neal’s Roadway supervisor, establishes that Roadway ’s decision to discharge O’Neal was unrelated to the gri evance. Roadway simply was waiting fo r statements from O’Neal’s manager and the affronted customer before actually discharging O’Neal. On appeal, O’Neal argues that because there is no evidence oth er than the testi mo ny of the Roadway decisionmakers to substantiate that the discharge was not pretextual, the grant of summary judgment should be reversed. O’Neal, however, bears the burden of providing affirmat ive evidence of pretext, and he has failed to do so. Finally, O’Neal failed to establish a prima facie case of retaliation because of his failure to provide evidence that his gri evance led Roadway to discharge him. The record evidence indicates that there was no causation—the discharge could not be in retaliat io n fo r th e grievance because the decision to discharge O’Neal was made before th e gri evance was filed

. See Davis v. Dallas Area Rapid Transit , 383 F.3d 309, 319 (5th Cir. 2004) (stati ng that “a causal link

. . . between the protected acti

vit y and the adverse employment action” is necessary to present a pri ma facie case of retaliat io n). IV. Conclusion The magistrate judge properl y concluded that O’Neal failed to raise any issues of mat erial fact and that Roadway was entitled to a judgment as a matter of law. Therefore, we AFFIRM the grant of summary judgment in favor of Roadway.