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1 While the court recognizes that the answer was filed in

state court, it clearly was filed in contemplation of removal to

this court. An answer raising 36 affirmative defenses is obviously

a violation of Rule 11. Because the conduct has caused no greater

inconvenience than the drafting of this footnote, the court will

take no further action. This staying of the court’s hand should

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JOHN BRYANT,

NO. CIV. S-04-685 LKK/DAD

Plaintiff,

v. O R D E R

SHAW INDUSTRIES, INC.,

Defendant.

 /

 On January 22, 2004, plaintiff, John Bryant ("Bryant") 

brought suit under the California Fair Employment and Housing Act

("FEHA"), alleging that he was harassed and discriminated against

on the basis of race by defendant, Shaw Industries ("Shaw"). On

April 6, 2004, defendant answered and asserted thirty-six

affirmative defenses.1 On the same day, defendant removed the case

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not be interpreted as condoning such conduct, nor should counsel

expect such a sanguine response to such conduct in the future. 

2 All facts are undisputed unless otherwise noted.

2

to this court based on diversity jurisdiction. Pending before the

court is defendant's motion for summary judgment.

I.

 FACTS2

Plaintiff is African-American. Pl.'s Depo. at 11:9-10. On

September 17, 2001, he was employed by defendant as a truck driver

based at its distribution center in Sacramento. Pl.'s Depo.

at 10:16-24. Plaintiff was responsible for driving a tractor

trailer to various locations to pick up and deliver rolls of carpet

and pallets of hard surface flooring such as tile. Pl.'s Depo. at

48:23-49:18. Upon his hire, plaintiff received copies of various

Shaw policies and rules. These included rules on warehouse dock

safety and rules for securing his truck and its contents. Pl.'s

Depo. at 78:1-80:14; Exhs. 3-5.

Plaintiff's manager throughout his employment at Shaw was Mike

Williams. Pl.'s Depo. at 19:17-18; 41:2-4; Pelicas Decl., ¶ 2;

Williams Decl., ¶ 2. Plaintiff's supervisor throughout his

employment at Shaw was Troy Pelicas. 

One of the regular routes at the Sacramento Shaw facility is

a round trip route between Sacramento and Reno. During most of

plaintiff's employment with Shaw, his supervisor assigned drivers

Roger Erwin and Jim Harding to the Reno route. Pelicas Decl., 

¶ 4. Roger Erwin was hired by Shaw prior to plaintiff. Jim

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3

Harding was hired the day after plaintiff was hired. Both Roger

Erwin and Jim Harding are Caucasian. Pelicas Decl. ¶ 4; Pl.'s

Depo. at 85:18-20. 

When Jim Harding became injured, Pelicas filled the Reno route

Harding covered by having the three least senior drivers at Shaw's

Sacramento facility drive the Reno route “once every three weeks,”

with Roger Erwin driving the Reno route on the remaining days. The

three least senior drivers at that time were Bob Hale, Mike Erwin,

and John Bryant. Pelicas Decl., ¶ 4. Plaintiff avers that he

drove the route more frequently than Mike Erwin or Bob Hale. 

Bryant Decl., ¶ 6. Hale and Erwin were hired by Shaw before

Plaintiff and had more seniority than plaintiff. Pelicas Decl.,

¶ 4. Pelicas avers that in his opinion allocating Harding's Reno

route assignment in this manner would be the fairest way to

accomplish the task. He claims that he did not consider race in

staffing the Reno route that had previously been covered by Jim

Harding. Pelicas Decl., ¶ 4. It is undisputed that plaintiff was

not asked to drive to Reno until after Jim Harding became injured.

Pl.'s Depo. at 85:7-86:15. 

Plaintiff asserts that although he was comfortable driving to

Reno when the roads were clear, he did not want to drive to Reno

because he felt he lacked experience driving in snow and ice and

was not comfortable putting chains on his tires. Pl.'s Depo. at

42:10-16; 99:25-100:2. Plaintiff received training from Shaw on

how to chain his tires and on snow and ice conditions, which he

claims was inadequate. Pl.'s Depo. at 93:20-25; 95:13-96:22;

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4

Bryant Decl., ¶ 5. Plaintiff drove the Reno route a total of four

to five times in snow and ice conditions. Pl.'s Depo. at

97:22-98:24. He claims that on one trip he needed assistance from

Caltrans. Bryant Decl., ¶ 7. When asked why he believed he was

assigned to the Reno route because of his race, plaintiff’s only

response was "because I was the only black guy and they said make

him do it.” Pl.'s Depo. at 98:25-99:9. 

In July 2002, before his trailer was finished being loaded by

a forklift driver, plaintiff backed up his rig, hooked it up to the

parked trailer, and stepped on the accelerator to "tug" and secure

the coupling. In doing so, plaintiff pulled the tractor a few

inches away from the loading dock. Pl.'s Depo. at 138:11-22;

139:10-15; 141:1-142:23: 181:7-13, Exh. 2. Plaintiff claims that

the forklift operator called him a "stupid asshole." Bryant Decl.,

¶ 9. Shaw's Dock Safety Procedures provide that when a trailer is

finished being loaded, a fluorescent red cone is to be placed on

the dock, signifying that the trailer is ready to be moved. In

September 2001, plaintiff signed off that he had read and

understood this "red cone policy." Pl.'s Depo. at 78:1-10;

79:18-24; Exh. 3. There was no red cone on the loading dock when

plaintiff pulled the trailer away in July 2002. Pl.'s Depo. at

177:6-16. Plaintiff was given a written warning and was told that

any further violations in the next three months would result in his

termination. Pl.'s Depo. at 159:1-13. Plaintiff believes other

drivers also pulled their trucks away from the loading dock when

no red cone was in place. Indeed, Pelicas, has disciplined another

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3 Prior to November 2002, Pelicas pointed out to Williams

that a Caucasian Shaw driver appeared to be taking longer on his

route than necessary. Pelicas followed that driver but did not

observe him do anything inappropriate. Pelicas Decl. ¶ 6. 

5

employee in addition to plaintiff for violating Shaw's Red Cone

policy. In late 2001, Pelicas issued a final warning to a

Caucasian driver for pulling a tractor trailer away from the

loading dock while it was still being loaded. Pelicas Decl., ¶ 5.

Aside from plaintiff and the Caucasian driver, Pelicas is not aware

of any other Shaw driver who pulled his tractor trailer away from

the loading dock while it was still being loaded. Pelicas Decl.,

¶ 5. When asked why plaintiff believed he received a warning for

the red cone violation because of his race, plaintiff responded

that "they" (clarifying that this refers to "the white guys")

perceive a "black guy's ways" to be "mean, aggressive [and]

common" and that "[a] black guy don't get a chance like a white

guy." Pl.'s Depo. at 161:3-163:5.

Drivers at Shaw turn in a log of their whereabouts each day.

Part of Pelicas' job is to review the drivers' logs regularly. He

noticed in reviewing the drivers' logs in November 2002 that

plaintiff appeared to take longer to complete his route than

Pelicas expected to see. Pelicas brought this to the attention of

manager Mike Williams. Pelicas Decl., ¶ 6; Williams Decl., ¶ 5.

Williams followed plaintiff as he drove his route on November 14,

2002.3 Williams observed plaintiff make several local stops in

the Sacramento area. When plaintiff stopped for lunch, plaintiff

did not lock up his tractor and trailer, but instead left the rig

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6

unlocked and left the keys in the ignition. Plaintiff then got in

a vehicle, left the area to get lunch, and was away from his truck

for an hour. After plaintiff left, Williams approached the

plaintiff's truck and was able to open the cab door. Inside,

Williams saw the keys to the truck still in the ignition. Pl.'s

Depo. at 223:8-224:17; 232:9-233:18; Williams Decl., ¶ 5. Upon his

hire, plaintiff received a copy of Shaw's Driver Lunch/Break

Schedules & Driver Responsibility policy and a copy of Shaw's

Regional Operations - Driver Guidelines. These policies stated

that drivers were required to secure and lock their tractor

trailers during lunch periods. Plaintiff signed off that he had

received and understood these policies. He is unaware of any Shaw

policy to the contrary. Pl.'s Depo. at 78:1-10; 79:8-12; 80:2-8;

231:22-24, Exhs. 4-5. Williams and Pelicas discussed the

situation. Defendant claims that during this discussion, neither

Pelicas nor Williams mentioned plaintiff's race in any way. 

Plaintiff was subsequently called in by Williams to discuss

the incident. Plaintiff admitted that he had, in fact, left his

rig unlocked, with the keys in it, while he left and took lunch.

Williams terminated plaintiff's employment and told him that the

reason for the discharge was his conduct. Pl.'s Depo. at 223:1-13;

239:7-23; Williams Decl., ¶ 6. Plaintiff believes drivers Bob

Meacham, Bob Hale, Mike Erwin, Roger Erwin, Victor Flores, Chris

and Jerry (last names unknown) all left their trucks unlocked with

the keys in them while taking lunch but were not fired. Pl.'s

Depo. at 233:23-234:24. Plaintiff only actually saw one driver,

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7

Roger Erwin, leave his truck unlocked with the keys in it while on

lunch break. As for drivers Meacham, Hale, Mike Erwin, Victor

Flores, Chris and Terry, plaintiff does not know that they actually

left their trucks this way, but claims that he heard that they had.

Pl.'s Depo. at 235:8-238:15. It is disputed whether Pelicas or

Williams knew anything about Erwin leaving his truck unlocked with

the keys in it while on lunch break. Pl.'s Depo. at 237:10-22;

Bryant Decl., ¶ 13. 

When asked why he believed his termination was racially

motivated, plaintiff responded that if white employees did what he

did, they would not have been fired, and that black people "have

very small limitations of things that we can do and get away with."

Pl.'s Depo. at 241:3-23. 

Plaintiff claims that in roughly November 2001, while

plaintiff and other drivers were in the break room watching news

coverage on 9/11, one of the drivers, Mike Erwin, remarked, "Oh

those damn sand niggers." Pl.'s Depo. at 29:16-30:25; 31:24-25.

Plaintiff was a little offended by the remark but did not construe

it to be a slur about African-Americans. He never complained about

it or mentioned it to anyone. Pl.'s Depo. at 28:3-12; 32:1-5. 

In March or April 2002, during the NBA playoffs between the

Sacramento Kings and the Los Angeles Lakers, plaintiff (a Lakers

fan) remarked "How ‘bout those Kings?" to a fellow driver (and

Kings fan) Mike Erwin. He made this comment just after the Lakers

had beaten the Kings. Plaintiff claims that Mike Erwin responded,

"Oh, here comes that nigger with that stuff again." Pl.'s Depo.

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8

at 11:24-12:5; 14:12-22; 14:23-25;16:5-6. Plaintiff claims he was

offended by the March/April 2002 remark at the time it occurred.

Pl.'s Depo. at 21:3-13. Mike Erwin had no supervisory authority

over plaintiff. Nothing further was said between plaintiff and

Erwin. Plaintiff never heard any other slurs about his race from

anyone at Shaw, including Pelicas and Williams, either directly or

indirectly. He never told Pelicas or Williams that he believed

either had made a racial slur or remark. Plaintiff did not file

a DFEH complaint until November 12, 2003. Pl.'s Depo. at 266:1-9;

Exh. 6. 

II.

 STANDARDS

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Secor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

Cir. 1995).

Under summary judgment practice, the moving party “[a]lways

bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of "the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any," which it believes

demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

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9

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Secor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

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Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to resolve the

parties' differing versions of the truth at trial." First Nat'l

Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809 F.2d at 631.

Thus, the "purpose of summary judgment is to 'pierce the pleadings

and to assess the proof in order to see whether there is a genuine

need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

Civ. P. 56(e) advisory committee's note on 1963 amendments); see

also International Union of Bricklayers & Allied Craftsman Local

Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.

1985).

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11

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)); See also Headwaters Forest Defense v.

County of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000).

Nevertheless, inferences are not drawn out of the air, and it is

the opposing party's obligation to produce a factual predicate from

which the inference may be drawn. See Richards v. Nielsen Freight

Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d

898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

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III.

ANALYSIS

Plaintiff maintains that he was harassed and discriminated

against while employed with defendant, all of which culminated in

his termination on November 19, 2002. Defendant moves for summary

judgment on plaintiff’s two claims which are brought pursuant to

California’s Fair Employment and Housing Act (“FEHA”). As I

explain below, defendant’s motion must be GRANTED.

A. RACIAL HARASSMENT CLAIM

California courts look to federal court decisions interpreting

Title VII in their resolving of FEHA racial harassment claims.

See, e.g., Etter v. Veriflo, 67 Cal.App.4th 457, 464 (1999). A

plaintiff may prove racial harassment by demonstrating that an

employer has created a hostile or abusive work environment. 

Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-67 (1986). To

prevail on a hostile workplace claim premised on race, plaintiff

must show: (1) that he was subjected to verbal or physical conduct

of a racial nature; (2) that the conduct was unwelcome; and (3)

that the conduct was sufficiently severe or pervasive to alter the

conditions of the plaintiff’s employment. Vasquez v. County of

L.A., 349 F.3d 634, 642 (9th Cir. 2003)(citing Gregory v. Windnall,

153 F.3d 1071, 1074 (9th Cir. 1998)). To demonstrate a hostile

work environment, a plaintiff must show that the environment is

abusive from both a subjective and an objective viewpoint. See

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).

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4 Two incidents pertaining to the use of the word “nigger”

by a fellow employee has been noted. The one relating to the 9/11

incident and the other the Kings game. Neither suffices to hold

defendant for trial on a harassment claim. “[S]imple teasing,

offhand comments, and isolated incidences . . . will not amount to

discriminatory changes in the terms and conditions of employment.”

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). While

the extremely offensive nature of these remarks is clear, no

reasonable jury could find that plaintiff’s allegations constitute

conduct so extreme or pervasive so as to alter the conditions of

employment. See, e.g., Vasquez v. County of Los Angeles, 349 F.3d

634, 643 (9th Cir. 2003); Sanchez v. City of Santa ana, 936 F.2d

1027, 1031 (9th Cir. 1990). 

13

In assessing the objective hostility of the a work

environment, the court considers a variety of factors, including

“the frequency of discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance, and whether it unreasonably interferes with an

employee’s work performance.” Nichols v. Azteca Rest. Enters., 256

F.3d 864, 872 (9th Cir. 2001); See also Vasquez, 349 F.3d at 643.

Although the complaint alleges that “[d]efendant has taken

demeaning actions toward Plaintiff, including . . . harassing

Plaintiff because of his race/national origin,” Compl. at 2,

neither the complaint nor plaintiff’s opposition brief discuss

incidents which might potentially constitute actionable racial

harassment. Indeed, plaintiff’s opposition is completely silent

as to racial harassment as an independent claim. Thus, it appears

that plaintiff has abandoned the claim.4

B. RACE DISCRIMINATION CLAIM

Plaintiff also asserts that Shaw discriminated against him

based on his race. To establish a prima facie case of

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discrimination, plaintiff must provide evidence that (1) he belongs

to a protected class; (2) he was performing competently in the

position he held; (3) he was terminated despite his qualifications

or experienced some adverse employment action; and (4) some other

circumstance suggests discriminatory motive. Guz v. Bechtol Nat’l,

Inc., 24 Cal.4th 317, 355 (2000)(citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973)). Because of the similarity

between state and federal employment discrimination laws,

California courts follow federal precedent in applying FEHA to

discrimination claims. Guz, id. at 354. The prima facie burden

is not an onerous one, but plaintiff must show, at the very least,

“actions taken by the employer from which one can infer, if such

actions remain unexplained, that it is more likely than not that

such actions were “based on a [prohibited] discriminatory

criterion[.]” Id. (quotation omitted).

Establishment of a prima facie case creates a presumption that

the employer unlawfully discriminated against the employee. Texas

Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Once

the plaintiff has established a prima facie case of discrimination,

the burden shifts to the defendant to articulate a legitimate

nondiscriminatory reason for its actions. McDonnell Douglas, 411

U.S. at 802. The defendant must produce admissible evidence of the

reasons for plaintiff’s rejection sufficient to create a genuine

issue of fact as to whether it discriminated against plaintiff.

Burdine, 450 U.S. at 254-255. The defendant must submit evidence

that, taken as true, would permit the conclusion that there was a

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5 The ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff. Burdine, 450 U.S. at 253.

15

nondiscriminatory reason for its actions. St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 509 (1993). If the defendant does so, the

presumption raised by the prima facie case is rebutted and

disappears. 

Finally, if the defendant articulates a legitimate,

nondiscriminatory reason for the employee’s rejection, plaintiff

must tender evidence that the defendant’s proffered reason was a

pretext for discrimination. McDonnell Douglas, 411 U.S. at 804.5

Plaintiff is African-American, and thus is a member of a

protected class, satisfying the first requirement of the prima

facie case. Pl.’s Depo. at 11:9-10. Defendant claims that

plaintiff cannot make out a prima facie case of discrimination

because his job performance was unsatisfactory. They cite to his

two violations of Shaw’s written policy, which led to his

termination. Plaintiff contends that he was performing his job

satisfactorily as he was no longer on probation at the time he was

terminated. Opp’n at 4. He was also employed with Shaw for over

a year, and the record indicates that only two disciplinary actions

were taken against him during this time. Viewing the evidence in

the light most favorable to plaintiff, as this court must do in

deciding a motion for summary judgment, the court will assume,

arguendo, that plaintiff has raised a triable issue as to whether

he was qualified for the position from which he was terminated.

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It is undisputed that plaintiff was fired from his position as a

truck driver from Shaw, thus, the third element of the prima facie

case is satisfied. Finally, plaintiff alleges that he was treated

differently than his white counterparts, in that he was disciplined

for conduct that white employees would not have been fired for,

and that he drove the Reno route more than the other two white

individuals assigned to the route. Pl.’s Decl., ¶¶ 4, 6, 8, 9, 15.

Although there is contrary evidence in the record, and the matter

is very close, viewing the record in its totality and drawing all

inferences in plaintiff’s favor, I conclude he has met his burden

of establishing the existence of a prima facie case of race

discrimination.

The burden now shifts to Shaw to advance a legitimate, non

discriminatory reason for plaintiff’s termination and adverse

actions taken against plaintiff. Defendant contends that plaintiff

was discharged because he violated two Shaw policies - for failing

to secure his truck while it was unattended, and for failing to

follow the red cone policy when his truck was being loaded. It

notes that a Caucasian driver was disciplined for violating the red

cone policy that plaintiff’s supervisor has monitored the

whereabouts of a Caucasian driver to make sure they do not leave

their trucks unattended and that plaintiff was assigned to drive

the Reno route because one of the regular drivers was injured; and

that plaintiff was assigned to the route with two other Caucasian

drivers who had the least seniority out of all the employees. This

evidence more than meets defendant’s burden of providing 

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legitimate, non-discriminatory reasons for the disciplinary actions

and his ultimate termination.

Because defendant has provided a legitimate non-discriminatory

reason for plaintiff’s termination, plaintiff must provide

sufficient evidence to rebut Shaw’s showing. Plaintiff’s attempts

to do so are unavailing. Plaintiff responds to defendant’s

proffered justifications by questioning them as “suspect at best”

because “other employees engaged in same/similar conduct as

Plaintiff did but were not disciplined for it.” Plaintiff also

maintains that the court should consider the racial comments which

were made in his presence as part of the cumulative evidence of

pretext. Compl. at 4. 

A plaintiff may establish pretext “either directly by

persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence.” Burdine, 450 U.S.

at 256.

When a plaintiff produces direct evidence of discrimination,

“a triable issue as to the actual motivation of the employer is

created even if the evidence is not substantial.” Id. In

contrast, where, as here, plaintiff attempts to show through

circumstantial evidence that the employer’s proffered explanation

is not credible, the plaintiff must produce “specific, substantial

evidence of pretext.” Godwin, 150 F.3d at 1221 (quotations

omitted).

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Plaintiff admits that he never heard any of his superiors make

any statements about his race, and the fellow worker who made

disparaging remarks to him about his race, had no authority to

discipline him. Pl.’s Depo. at 19:3-19. Indeed, it appears that

plaintiff did not bring the incident to management’s attention. 

Plaintiff insists that he may raise a triable issue as to

discrimination because defendant did not treat him similarly to

other truck drivers, and that he was punished for conduct that

others did not get punished for. Put directly, there is no

evidence in the record to support plaintiff’s claim. The evidence

reveals that plaintiff was given a final warning for violating the

red cone policy, but his supervisor gave a Caucasian driver a final

warning for violating the same conduct. Pelicas Decl., ¶ 5. 

Plaintiff also argues that he was unfairly singled out for

termination because other drivers left their trucks unlocked.

Other than plaintiff’s hearsay-based belief, however, there is not

evidence to support the claim. 

Plaintiff’s claim that he was specifically picked to drive to

Reno because of his race also finds no support in the record. It

is undisputed that plaintiff was not picked to drive to Reno until

a Caucasian driver who regularly drove the route was injured, and

the substitute drivers were those with the least seniority and

included two Caucasians. In sum, there is no triable issue with

regard to plaintiff’s claims of race discrimination. 

There is no question that the federal and state antidiscrimination statutes are important tools in this society’s

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effort to eradicate the scourge of racism. Suits claiming

discrimination which are without substance, however, undercut that

important tool, and indeed bring the effort into disrepute. 

Defendant’s motion for summary judgment is GRANTED and the

Clerk is directed to CLOSE the case. 

IT IS SO ORDERED. 

DATED: April 29, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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