IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10107

Summary Calendar

TERRY R. JAMES, also known as Terry Ray James, also known as Terry

James,

Plaintiff - Appellant

v.

FIESTA FOOD MART, INCORPORATED,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CV-00711-P

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Plaintiff-appellant Terry R. James (“James”) appeals the district court’s

grant of summary judgment in favor of defendant-appellee, Fiesta Food Mart,

Inc., (“Fiesta”) on James’ Title VII claims of employment discrimination. For the

following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

August 27, 2010

Lyle W. Cayce

Clerk

 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.

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No. 10-10107

I.

Fiesta, a regional grocery chain, hired James, an African-American male,

as a nighttime shelf stocker at one of Fiesta’s stores in Dallas, Texas, in July

2008. During James’ tenure at Fiesta, the company maintained written rules

and policies that described, among other things, the perks available to Fiesta’s

stockers and the company’s standards for workplace harassment. Fiesta

permitted stockers to consume certain items from the store shelves for free;

other items were available for consumption at cost. Fiesta provided its

employees, including James, with a list of the available free items, and Fiesta

warned that disciplinary action could result if an employee consumed items not

on the free list without paying for them. Fiesta also maintained an anti1

harassment policy which directed employees who felt victimized by harassment

to contact certain personnel to file grievances. Fiesta defined harassment as

including verbal racial slurs but made clear that employees had to report

harassment complaints to the proper persons within the company. James signed

a form acknowledging he received training on Fiesta’s policies.

While employed at Fiesta, James alleges co-workers “casually” used the

term “nigga,” and he voiced his dislike for its use “three or four times,” citing the

specific dates in his complaint. James asserts that at least one of the workers

using the term was his immediate supervisor and that others were various “lead

persons,” “foremen,” and “shift leaders.” Fiesta does not deny that some of these

co-workers held such informal titles, but it asserts that no individual James

identified as using the offensive term was either a manager or official. James

asserts in his complaint that he told an “elderly white haired caucasion” [sic]

manager, later identified in James’ summary judgment evidence as Mike Mayo,

about his problems with the word’s use in his presence on February 15, 2009, but

 Fiesta's policies also listed theft as grounds for immediate termination. 1

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claims Mayo took no action. James admitted he never complained to other

management officials about the treatment. On February 22, 2009, Le May

terminated James after discovering that James consumed a food item that was

neither paid for nor listed as a free item. James knew the item was not on the

free item list but insists he would have paid for it. James’ affidavit states that

Hispanic coworkers were permitted to consume non-free items but were not

disciplined for such consumption. When James confronted Le May during his

firing about why the Hispanic employees were not punished for their

consumption in the same manner, James alleges that Le May laughed and said,

“We can’t catch them all.”

Fiesta disputes James’ allegations that anyone who used “nigga” was

either a manager or an official of the company. Fiesta also sought during

summary judgment to strike certain portions of James’ evidence pertaining to

his co-workers, alleging that James did not sufficiently identify those individuals

to put Fiesta on notice of his claims. Le May stated in his declaration that he

had no knowledge of harassment nor any complaints James had about the work

environment.

In April 2009, James, proceeding pro se, filed this

discrimination/retaliation action under Title VII against Fiesta in the district

court. After a brief period of discovery, Fiesta moved for summary judgment in

October 2009. On January 14, 2010, the district court granted Fiesta’s motion

for summary judgment, ordered that James take nothing, and denied the motion

to strike as moot. James filed a timely appeal to this court.

II.

A.

We review a district court’s grant of summary judgment de novo. SandersBurns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). Movants bear the

initial burden of demonstrating an absence of material fact issues. Forsyth v.

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Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). If the movant meets that burden,

however, the nonmoving party must then identify evidence in the record which

creates a material fact issue for which it would bear the burden of proof at trial.

Fed. R. Civ. P. 56(e). “[A] dispute about a material fact is ‘genuine’ . . . if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

B.

1.

James’ complaint focuses primarily on his termination for theft, which

James claims was either racially discriminatory or retaliatory. Title VII of the

2

Civil Rights Act of 1964, as amended, prohibits discrimination “against an

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).

The Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), created a burden-shifting framework for Title VII discrimination claims

which rely on circumstantial evidence. The factors necessary to establish a

prima facie case include: (1) membership in a protected class; (2) qualification

for the position at issue; (3) subjection to an adverse employment action; and (4)

treatment that was less favorable than similarly situated persons outside the

protected class. Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir.

3

2

James also appeals summary judgment on a Title VII hostile work environment claim

based on the racial slurs used by his co-workers. While racially offensive terms certainly have

no place in civilized society, we cannot say that his allegations regarding “casual” use of the

term which he complained about “three or four times” arise to the level of severity or

pervasiveness necessary to sustain his claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993) (requiring severe or pervasive conduct that creates objectively hostile work

environment, not simple epithets that engender offensive feelings, to implicate Title VII).

Accordingly, we AFFIRM the district court’s grant of summary judgment on this claim.

Some cases discuss another factor which required that in discriminatory discharge

3

cases a plaintiff have been replaced by a worker outside plaintiff’s protected class. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). However, this circuit has eliminated that

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2004). Once a prima facie case has been established, the burden shifts to the

employer to provide a non-discriminatory reason for the discharge – the

employer’s burden is one of production, not persuasion. Patrick v. Ridge, 394

F.3d 311, 317 (5th Cir. 2004). The plaintiff can still prevail if he can

demonstrate that the proffered reason was a pretext for the discriminatory

motive, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000), or

if the employer had “mixed motives” for the adverse action, one of which was

discriminatory, Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010). To show

pretext, a plaintiff may prove that the reason proffered by the employer for

termination is unworthy of credence, or that the employer's decision was more

likely motivated by discriminatory reasons. Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 257 (1981).

James is a member of a protected class who was terminated by Fiesta, and

Fiesta does not contest his qualifications for a stocker position. Fiesta contends

that James has failed to produce summary judgment evidence showing more

favorable treatment to co-workers. We agree. James claims that his Hispanic

co-workers received preferential treatment from Fiesta because they were

allowed to consume non-free items without adverse action. However, James has

failed to identify with particularity any actual person who meets this vague

description. Nor did he properly allege – much less produce evidence showing

– that any relevant management officials from Fiesta knew about the alleged

actions taken by James’ Hispanic co-workers. Without more, James has failed

to carry his initial burden in making out a prima facie case.

Even assuming arguendo that James has made out a prima facie case,

Fiesta provided a valid, non-discriminatory reason for his firing – theft of a nonfree food item. James counters that the reason for the discharge was pretextual

factor as a prerequisite for liability. See Williams v. Trader Publ’g Co., 218 F.3d 481, 485 (5th

Cir. 2000).

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based on his summary judgment evidence that Hispanic co-workers were not

disciplined for the same infraction of corporate rules. This argument fails for the

same reason: James’ general statement is non-specific and does not identify the

particular Hispanic co-workers he is referring to.

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2.

James also argues that his discharge came in retaliation for his

harassment complaints. Retaliation claims are also subject to the McDonnell

Douglas framework. “To establish a prima facie case of retaliation, the plaintiff

must establish that: (1) he participated in an activity protected by Title VII; (2)

his employer took an adverse employment action against him; and (3) a causal

connection exists between the protected activity and the adverse employment

action.” McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007).

James alleges that his complaint to manager Mike Mayo about the use of racial

slurs in the workplace was not acted upon, and that five days later he was

terminated for theft even though Hispanic employees were not punished for

engaging in the same activity. Thus James has shown he engaged in a protected

activity through his complaint of discriminatory conduct, and he suffered an

adverse employment action upon termination.

For purposes of a prima facie case, the timing of the adverse decision and

its proximity to protected activity can establish an inference of causal

connection. Gee v. Principi, 289 F.3d 342, 346 n.3 (5th Cir. 2002); see also Evans

v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (five day proximity can

establish prima facie evidence of causal connection for retaliation claim). We

assume arguendo that James therefore established a prima facie case of

retaliatory discharge by alleging a five day gap between his complaint to Mayo

This vague, non-specific allegation regarding his Hispanic co-workers contrasts 4

markedly with James’ ability to identify specific co-workers who allegedly used racial slurs on

specific dates in the workplace.

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and his firing by Le May. Once an employer produces evidence of a valid reason

for the adverse action, however, our decision in Strong v. Univ. Healthcare Sys.,

L.L.C., 482 F.3d 802, 808 (5th Cir. 2007), makes clear that a plaintiff cannot rely

solely on suspicious timing to carry his burden at the pretextual stage of the

burden-shifting framework. In the face of evidence of a non-retaliatory reason

for the adverse action, a plaintiff must show that retaliatory motives were the

but-for cause of that action. Id. James has produced no such evidence.

Le May filed a declaration unequivocally stating that he had no actual

knowledge of any of James’ complaints prior to his termination. This unrebutted

evidence also supports Fiesta’s argument that the termination was not

connected with James’ harassment complaints. See Manning v. Chevron Chem.

Co., 332 F.3d 874, 883 (5th Cir. 2003) (holding that plaintiffs cannot establish

causal link when decision-makers were unaware of protected activity). James

simply has not made a contrary showing.

III.

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

5

AFFIRMED.

James seeks to sanction counsel for Fiesta for alleged unreasonable delay of this 5

matter’s resolution for their failure to expeditiously serve James with their appellate brief,

which James claims caused his reply brief to be untimely filed. Instead of immediately

seeking sanctions, James’ proper remedy would have been to request an extension in order to

file his reply brief. See 5TH CIR. R. 26.2. Accordingly, the motion for sanctions is DENIED.

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