* 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that this opinion should not be published and is not precedent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.00-30626 

Summary Calendar

____________________

ALFRED E BRANDON

Plaintiff - Appellant

v.

LOCKHEED MARTIN CORPORATION, ET AL

Defendants

LOCKHEED MARTIN CORPORATION

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

No. 99-CV-3513-C

_________________________________________________________________

July 6, 2001

Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Alfred E. Brandon appeals from the

district court’s grant of summary judgment on his wrongful

discharge, discrimination, and retaliation claims in favor of

Defendant-Appellee Lockheed Martin Corporation. For the

following reasons, we AFFIRM.
1 According to Article I of the CBA, the Union is the

“exclusive representative for all production and maintenance

employees of” Lockheed “for the purpose of collective bargaining

in respect to rates of pay, wages, hours of employment, and other

conditions of employment.”

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant Alfred E. Brandon, an African-American

male, began working for Defendant-Appellee Lockheed Martin

Corporation, Michoud Space Systems (“Lockheed”) on November 14,

1977. He was terminated from Lockheed, effective September 21,

1998, for allegedly sleeping at work and eating lunch during his

scheduled work time. At the time of his termination, Brandon was

a member of Local No. 1921 of the International Union, United

Automobile, Aerospace and Agricultural Implement Workers of

America (the “Union”), and his employment with Lockheed was

governed by the terms of the Collective Bargaining Agreement (the

“CBA”) between Lockheed and the Union.1 

On January 13, 1998, Brandon received a Notice of

Disciplinary Action as a result of having been caught watching

“Monday Night Football” on television during his scheduled work

hours. The Notice stated:

This is a very serious violation of company rules which

forbid leaving your work area without authorization,

idling/loafing by watching television during work hours

and the use of government/company equipment for other

than official business. Normally, discipline for this

offense is discharge. However, the company is willing,

on a non-precedent setting basis, to reduce the

discharge to a thirty (30) work day suspension without

pay . . . . Any future same or similar act(s) will

result in your immediate discharge.
2 However, Brandon admits he received notice of his

termination on October 21, 1998. This notice stated that he was

“[d]ischarged for violation of prior disciplinary action

agreement concerning future conduct” and did not mention the

alleged offenses of September 16 and 18. Therefore, he maintains

that the notice did not meet the requirements of the CBA. He

asserts that the first written notice he received regarding his

alleged offenses was from the state of Louisiana and sent in

relation to an unemployment benefits hearing.

3 According to Lockheed, the letter was sent from

Lockheed’s mailroom to Brandon’s home address by certified mail

on September 30, 1998. After an investigation, the United States

Postal Service concluded that the letter was irretrievably lost

and issued a refund to Lockheed.

3

On September 16, 1998, Brandon was allegedly caught sleeping

in his work area, and, on September 18, 1998, he was allegedly

caught eating lunch outside of his assigned eating period. On

September 21, 1998, Brandon attended an investigative hearing

with human resources personnel, in which he was informed of the

allegations that he had broken company rules and was suspended

pending an investigation. 

According to Lockheed, a letter, which Brandon asserts he

never received,2 was sent to Brandon’s home address on September

24, 1998, which stated that he was terminated effective September

21, 1998. Additionally, a copy of the letter was placed in the

Union’s in-plant mailbox.3 

Brandon filed two grievances with the Union. In the first

grievance (“Grievance I”), filed on October 5, 1998, he argued

that Lockheed had not notified him in writing of the outcome of

the investigation within the ten-day limit required by the CBA. 
4 The arbitrator relied on statements from Bargaining

Committee Chair Benny McCormick to find that Brandon had actual

knowledge of the termination. McCormick stated that, sometime on

or before October 1, he contacted Brandon to ask him to come to

the Union office. When Brandon came, McCormick read him the

termination letter and described the grievance McCormick had

already drafted on the merits. Instead of submitting that

grievance, McCormick and Brandon decided to wait until Brandon

received the notice himself. The arbitrator found the actual

date of this meeting to be unclear, but noted that McCormick had

indicated to the NLRB that the conversation happened on October 1

and that two other Union employees indicated on October 2 that

the meeting had already occurred.

4

Lockheed rejected Grievance I, stating that it had mailed the

notification letter to Brandon’s home address on the sixth day of

the ten-day period. Brandon filed a second grievance (“Grievance

II”), on October 27, 1998, challenging his termination on the

merits. Lockheed denied Grievance II as untimely on November 10,

1998. 

The Union accepted Lockheed’s position regarding Grievance

II, but brought Grievance I to arbitration, maintaining that

Brandon had not been presented with the reprimand in writing

within ten days. The arbitrator found in favor of Lockheed,

deciding that, although notice to the Union does not normally

constitute notice to the employee, when, as in this case, the

Union forwards the company’s decision to the employee within the

ten-day period presentation is perfected.4

Brandon filed a charge of discrimination with the Louisiana

Commission on Human Rights and the EEOC on September 3, 1999,

alleging that he believed he was discharged because of his race
5 From the face of Brandon’s complaint, it is difficult to

determine the basis of his claims. He states in his complaint:

VIII.

During all relevant times, Defendant maintained a

grievance procedure for alleged violations of policy. 

Defendant denied petitioner due process by summarily

dismissing petitioner without affording him an

opportunity to address the faceless allegations of

Defendant. Defendant’s decision to terminate

Petitioner was pre-textural [sic] in nature and was not

contemporaneous to the alleged violations. Petitioner

had long since been warned and counseled by Defendant

and had not engaged in any form of violation prior to

being wrongfully terminated.

IX.

Defendant discriminated against the Petitioner when

he was denied due process to address the allegations of

violations of policy outside of the grievance period.

When questioned as to the bases of his complaints during the

hearing on the motion for summary judgment, Brandon’s counsel

agreed that, with the exception of his Title VII claim, all other

claims were preempted by the Labor Management Relations Act

(“LMRA”), but also indicated that his claim included a state law

wrongful discharge claim.

5

in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”). On September 3, 1999, the EEOC issued Brandon a right-tosue letter, but declined to investigate Brandon’s charge “because

it was not filed within the time limit required by law.” 

On October 21, 1999, Brandon filed suit in Civil District

Court for the Parish of Orleans, alleging discrimination.5 The

suit was removed to federal court on November 18, 1999 based on

federal question and diversity jurisdiction. Lockheed moved for

summary judgment on March 1, 2000, and the motion was granted by

the district court on April 18, 2000.
6

The district court first noted that Brandon conceded at oral

argument that any claim he might have had for a deprivation of

due process within the grievance procedure is barred either by

the preemption of § 301 of the Labor Management Relations Act

(“LMRA”) or the binding decision of the arbitrator on the issue. 

The district court recognized that Brandon also conceded at oral

argument that he had no claim against the Union for breach of the

duty of fair representation. 

Second, the court dismissed Brandon’s claim for wrongful

discharge under Louisiana state law because binding arbitration

had already determined that the discharge was proper. Further,

§ 301 of the LMRA would preempt Brandon’s state claim because

Brandon’s employment was governed by a CBA. 

Third, although noting that federal labor law did not

preclude Brandon’s race discrimination claims, the district court

dismissed Brandon’s state and federal race discrimination claims

because there were no genuine issues of material fact that would

support the claims. The court found that Brandon failed to

establish a prima facie case of disparate treatment and that,

even if he had, his claims were time-barred because he did not

file his EEOC charge within the time limit required by Title VII. 

Finally, the district court dismissed Brandon’s claim that

Lockheed had retaliated against him for his union and political

activity because such claims fell under the exclusive

jurisdiction of the National Labor Relations Board (the “NLRB”),
7

and therefore, the district court found it was without

jurisdiction to hear them. 

Brandon timely appeals.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. See Evans v. City of Bishop, 238 F.3d 586, 588 (5th

Cir. 2000). Summary judgment is appropriate when the record

shows “‘that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.’” Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 (5th

Cir. 2000) (quoting Taylor v. Principal Fin. Group, Inc., 93 F.3d

155, 161 (5th Cir. 1996)). “‘If the moving party meets the

initial burden of showing there is no genuine issue of material

fact, the burden shifts to the nonmoving party to produce

evidence or designate specific facts showing the existence of a

genuine issue for trial.’” Id. (quoting Taylor, 93 F.3d at 161).

“Conclusory allegations unsupported by specific facts . . . will

not prevent an award of summary judgment; the plaintiff [can]not

rest on his allegations . . . to get to a jury without any

significant probative evidence tending to support the complaint.” 

Giles v. Gen. Elec. Co., 245 F.3d 474, 493 (5th Cir. 2001) 

(alteration in original) (internal quotations omitted) (quoting

Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d
6 Brandon argues at length that Lockheed failed to follow

the procedures required by the CBA, that the grievance and

arbitration procedures failed to address his central issues, and

that he should have the opportunity to present his claims to a

trial court. As explained infra in the text, these claims all

pertain to guarantees under the CBA and are preempted by § 301.

8

698, 713 (5th Cir. 1994)). “Instead, Rule 56(e) . . . requires

the nonmoving party to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories,

and admissions on file, designate specific facts showing that

there is a genuine issue for trial.” Id. (internal quotations

omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). “[W]e must view all facts in the light most favorable

to the nonmovant.” Cardinal Towing & Auto Repair, Inc. v. City

of Bedford, Tex., 180 F.3d 686, 690 (5th Cir. 1999). 

III. WRONGFUL DISCHARGE CLAIM

Brandon alleges that the district court erred in dismissing

his state law wrongful discharge claim as preempted by § 301 of

the LMRA (“§ 301”). One difficulty in determining whether the

district court erred is that Brandon is unclear about the basis

of his state-law wrongful discharge claim, i.e., whether it is

statutory or common law. 

To the extent that Brandon’s state wrongful termination

claims arise from Lockheed’s violation of the due process

guaranteed to him by the CBA, we agree with the district court

that those claims are preempted by § 301.6 “Preemption is a
7 We note that Brandon did not challenge the district

court’s finding that he had conceded his claims under the LMRA

itself. Therefore, that claim is abandoned. See Evergreen

Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 918 (5th Cir.

9

question of law, which we review de novo.” Meredith v. La. Fed’n

of Teachers, 209 F.3d 398, 404 (5th Cir. 2000).

Section 301 provides in relevant part:

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter

. . . may be brought in any district court of the

United States having jurisdiction of the parties,

without respect to the amount in controversy or without

regard to the citizenship of the parties.

29 U.S.C. § 185(a) (1998). Regarding § 301 preemption of state

law claims, the Supreme Court has stated that “if the resolution

of a state-law claim depends upon the meaning of a collectivebargaining agreement, the application of state law . . . is preempted and federal labor-law principles . . . must be employed to

resolve the dispute.” Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 405-06 (1988). A state-law remedy is “independent”

of the CBA for § 301 preemption purposes if “resolution of the

state-law claim does not require construing the collectivebargaining agreement.” Id. at 407. 

Where Brandon relies on Lockheed’s failure to follow the

disciplinary notice procedures required by the CBA, or any of the

other procedures or requirements of the CBA, to support his

wrongful discharge claims, Brandon’s claim would require

construing the CBA and is therefore preempted by § 301.7
2000). 

Even had he not abandoned those claims, Brandon is bound to

the result of the arbitration proceedings under the LMRA. While

an individual may bring suit against his employer for breach of a

CBA, he is required to attempt to exhaust any grievance or

arbitration remedies provided in the collective bargaining

agreement. See DelCostello v. Int’l Bhd. of Teamsters, 462 U.S.

151, 163 (1983). “Subject to very limited judicial review, he

will be bound by the result according to the finality provisions

of the agreement.” Id. The CBA stated that the grievance and

arbitration procedure was final and binding. The exception to

the limited review applies when “the union representing the

employee in the grievance/arbitration procedure acts in such a

discriminatory, dishonest, arbitrary, or perfunctory fashion as

to breach its duty of fair representation.” Id. This argument

was waived by Brandon in the district court.

10

To the extent that Brandon’s state-law wrongful discharge

claims rely on some other legal theory that may be independent of

the CBA, such as retaliation or harassment, he has pled

insufficient facts to survive summary judgment. “[O]ne of the

principle [sic] purposes of summary judgment is to isolate and

dispose of factually unsupported claims or defenses, and the rule

should be interpreted in a way that allows it to accomplish this

purpose.” Melton v. Teacher’s Ins. & Annuity Ass’n, 114 F.3d

557, 559 n.1 (5th Cir. 1997). “[U]nsupported allegations in

pleadings are insufficient to prevent the grant of summary

judgment.” Bagby v. Gen. Motors Corp., 976 F.2d 919, 921 (5th

Cir. 1992). Brandon has submitted no evidence in support of his

claims and has pled no facts that could support a state-law

wrongful discharge claim. 
8 Brandon’s arguments regarding why the district court

decision was in error are unclear. To the extent he argues that

the district court erred in finding that the arbitrator’s

decision was binding on his race discrimination claims and thus

precluded his race discrimination claims, we hold that the

district court made no such finding. In fact, the district court

stated that “[n]ormally exclusive arbitration provisions must

give way to certain statutory rights, such as the antidiscrimination provisions in Title VII.” The district court

dismissed Brandon’s race discrimination claims on other grounds.

To the extent that Brandon argues that removal from federal

to state court was improper because his claims did not arise

under federal law, we disagree. Brandon argues that his original

complaint did not state a federal question and, under the “‘well

plead complaint rule,’” should not have been removed to federal

court. However, Brandon admits that he “sought relief for

wrongful termination and the denial of due process to address the

allegations of violations of policy outside of the grievance

11

The district court did not err in granting summary judgment

in favor of Lockheed on Brandon’s state law wrongful discharge

claims.

IV. DISCRIMINATION CLAIMS

The district court dismissed Brandon’s federal and state

race discrimination claims, finding that there were no genuine

issues of material fact that would support the race

discrimination claims and that Brandon had failed to establish a

prima facie case of disparate treatment race discrimination. 

Further, the district court found that, even if Brandon had

established a prima facie case of race discrimination, his claims

were time-barred because he failed to file his EEOC charge within

the required time limit. Brandon argues that the district court

erred in dismissing his race discrimination claims.8
period.” This latter claim arises under the CBA, see supra Part

III, and is subject to removal based on the “complete preemption”

doctrine.

While federal courts typically ascertain the existence

of federal question jurisdiction by applying the

familiar “well-pleaded complaint” rule, there exists a

“corollary” to this rule, which is most frequently

referred to as the doctrine of “complete preemption.” 

This doctrine has been used to define limited

categories of state law claims that are “completely

preempted” such that “any civil complaint raising this

select group of claims is necessarily federal in

character,” no matter how it is characterized by the

complainant in the relevant pleading. . . . Because

they are recast as federal claims, state law claims

that are held to be completely preempted give rise to

“federal question” jurisdiction and thus may provide a

basis for removal. The Supreme Court has held the

doctrine of complete preemption applicable to certain

claims preempted by ERISA, as well as to certain claims

preempted by the LMRA. 

McClelland v. Gronwaldt, 155 F.3d 507, 512 (5th Cir. 1998)

(citations and footnotes omitted).

Further, removal in this case was premised not only on the

federal question presented by the preemption of § 301 of the LMRA

but also on diversity jurisdiction.

9 Brandon makes race discrimination claims under both

federal and state law. Because of the similarity between Title

VII and LA. REV. STAT. ANN. § 23:1006, Louisiana’s antidiscrimination statute, courts appropriately look to federal

jurisprudence to interpret Louisiana discrimination laws. See

King v. Phelps Dunbar, L.L.P., 98-1805, at 7 (La. 6/4/99), 743

So. 2d 181, 187; see also Nichols v. Lewis Grocer, 138 F.3d 563,

12

We agree with the district court that Brandon has not met

his burden of “produc[ing] evidence or designat[ing] specific

facts showing the existence of a genuine issue for trial” on

either his state or federal racial discrimination claims. Allen,

204 F.3d at 621 (internal quotations omitted) (quoting Taylor, 93

F.3d at 161).9 Claims of racial discrimination supported by
566 (5th Cir. 1998); Hicks v. Cen. La. Elec. Co., 97-1232 (La.

App. 1 Cir. 5/15/98), 712 So. 2d 656, 658 (“Because of the

substantial similarities between state and federal

anti-discrimination laws, courts may appropriately consider

interpretations of federal statutes when construing Louisiana

law.”). Our finding that the district court did not err in

granting summary judgment on Brandon’s federal discrimination

claims applies as well to Brandon’s state discrimination claims.

13

circumstantial evidence are analyzed under the framework set out

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

“First, the plaintiff must establish a prima facie case of

discrimination.” See Reeves v. Sanderson Plumbing Prods., Inc.,

120 S. Ct. 2097, 2106 (2000). Once the plaintiff satisfies this

prima facie burden, the burden shifts to the employer to produce

a “legitimate, nondiscriminatory reason for its decision.” 

Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir.

2000). “If the defendant can articulate a reason that, if

believed, would support a finding that the action was

nondiscriminatory, ‘the mandatory inference of discrimination

created by the plaintiff’s prima facie case drops out of the

picture and the factfinder must decide the ultimate question:

whether [the] plaintiff has proved [intentional

discrimination].’” Evans v. City of Houston, 246 F.3d 344, 350

(5th Cir. 2001) (alterations in original) (some internal

quotations omitted) (quoting Russell, 235 F.3d at 222). “In the

context of a claim of discrimination, a plaintiff must adduce

evidence that the justification was a pretext for racial and age

discrimination.” Id. at 351. “In making this showing, the
14

plaintiff can rely on evidence that the employer’s reasons were a

pretext for unlawful discrimination.” Russell, 235 F.3d at 222. 

“However, as the Court stated in Hicks, a showing of pretext does

not automatically entitle an employee to a judgment as a matter

of law.” Id. at 223. While a showing of pretext will more

likely than not lead to an inference of discrimination, see id.,

a showing of pretext by the plaintiff will not always be

sufficient to infer discrimination. For example, “if the record

conclusively revealed some other, nondiscriminatory reason for

the employer’s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evidence that

no discrimination had occurred,” the employer would still be

entitled to summary judgment. See Reeves, 120 S. Ct. at 2109. 

We agree with the district court that Brandon has failed to

establish a prima facie case of race discrimination. If

Brandon’s claim is construed as a claim of discriminatory

termination, to establish his prima facie case he must establish:

“(1) that he is a member of a protected group; (2) that he was

qualified for the position held; (3) that he was discharged from

the position; and (4) that he was replaced by someone outside of

the protected group.” Byers v. Dallas Morning News, Inc., 209

F.3d 419, 426 (5th Cir. 2000). It is uncontroverted that Brandon

is a member of a protected group and that he was discharged from

his position; however, he has failed to present any evidence
15

either that he was qualified for the position or that he was

replaced by someone outside the protected group.

Alternatively, Brandon’s claim may be interpreted as an

allegation of discriminatory discipline. “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. 1980)). Again, Brandon has

failed to establish the requisite prima facie case. When asked

to identify employees who were treated differently, Brandon

alleges that three other employees, all African-American men,

received only a ten-day disciplinary suspension whereas he

received a thirty-day suspension for his behavior. The treatment

of these three African-American men does not create a prima facie

case of racial discrimination.

Because we agree with the district court that Brandon failed

to meet his prima facie burden, we need not address whether his

EEOC charge was timely filed. We find that the district court

did not err in granting summary judgment on Brandon’s race

discrimination claims. 

V. RETALIATION CLAIM
10 Brandon argues that the district court erred when it

dismissed his claim for failure to state a claim upon which

relief could be granted. We construe Brandon’s argument to refer

to his claim that Lockheed retaliated against him for his union

activities, which the district court dismissed for lack of

jurisdiction.

16

The district court dismissed Brandon’s retaliation claim,

finding that it did not have jurisdiction because the claim fell

within the exclusive jurisdiction of the NLRB. Brandon argues

that the district court’s finding was error.10 We disagree.

The NLRB has primary jurisdiction to decide what constitutes

unfair labor practices under the National Labor Relations Act

(the “NLRA”). See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83

(1982); United Food & Commercial Workers Union AFL-CIO v.

Pilgrim’s Pride Corp., 193 F.3d 328, 331 (5th Cir. 1999). “As a

general rule, federal courts do not have jurisdiction over

activity which ‘is arguably subject to §7 or §8 of the [NLRA],’

and they ‘must defer to the exclusive competence of the National

Labor Relations Board.’” See Kaiser Steel Corp., 455 U.S. at 83

(citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236,

245 (1959)). There are exceptions to this general rule, see

e.g., United Food, 193 F.3d at 331; Tamburello v. Comm-Tract

Corp., 67 F.3d 973, 977-78 (1st Cir. 1995), none of which applies

to this case. 

Further, an unfair labor practice is defined in § 8 of the

NLRA. Section 8 states in relevant part: “[i]t shall be an

unfair labor practice for an employer . . . to interfere with,
17

restrain, or coerce employees in the exercise of the rights

guaranteed in section [7] of this title.” 29 U.S.C. § 158(a)(1)

(1998). Moreover, § 8 of the NLRA provides that “[i]t shall be

an unfair labor practice for an employer . . . by discrimination

in regard to hire or tenure of employment or any term or

condition of employment to encourage or discourage membership in

any labor organization.” Id. § 158(a)(3). Further, “an employer

violates Section 8(a)(3) by taking adverse employment action

against an employee in retaliation for his union activities or

sympathies.” New Orleans Cold Storage & Warehouse Co. v. NLRB,

201 F.3d 592, 600 (5th Cir. 2000); see also Marshall Durbin

Poultry Co. v. NLRB, 39 F.3d 1312, 1318 (5th Cir. 1994) (“Section

8(a)(3) proscribes employer reprisals against an employee for

engaging in Union activity.”).

Brandon alleges that he was terminated in retaliation for

his role as a union representative and for speaking up for the

rights of his co-workers. This allegation would constitute an

unfair labor practice under § 8 of the NLRA and falls under the

exclusive jurisdiction of the NLRB. Therefore, we find that the

district court did not err in finding it was without jurisdiction

to hear the retaliation claim.

VI. CONCLUSION
18

For the foregoing reasons, we AFFIRM the judgment of the

district court.