IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30489

GERALD BROWN, 

 Plaintiff - Appellant

v.

HOME DEPOT USA, INCORPORATED, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:14-CV-1470

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant appeals the district court’s grant of summary 

judgment dismissing his employment discrimination claim against the 

Defendant-Appellee. We affirm.

I.

Gerald Brown is an African American who worked for Home Depot USA, 

Inc. (Home Depot) for twenty-five years. On July 4, 2013, Home Depot 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 5, 2016

Lyle W. Cayce

Clerk

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terminated Brown for deficient performance as an assistant store manager at 

its Marrero, Louisiana location. By the time Home Depot fired Brown, he had 

accumulated numerous oral and written reprimands for substandard work. 

Brown’s struggles began eight years before his termination when he 

failed to attend a mandatory store audit. On October 5, 2009, Home Depot 

disciplined Brown again because he failed to ensure that associates under his 

control complied with markdown procedures. Two months later, Home Depot

reprimanded Brown when he failed to follow the proper procedure for an 

absence. 

Brown transferred to the Marrero store in 2010, and his deficiencies 

continued. Brown’s 2011 annual evaluation described his poor performance. 

Although it noted that Brown delegated well and associates considered him 

approachable, the evaluation stated that he needed improvement in numerous 

areas including: “Developing Direct Reports” from supervisors, “Managing and 

Measuring Work” of associates, and “Conflict Management.” While it

ultimately scored Brown a “Valued Associate,” Home Depot explained that 

eighty percent of employees are ranked as valued. Moreover, there are 

different levels of Valued Associate, and it could include a “bottom performer.”

Brown’s mid-year evaluation also described areas that needed 

improvement. The evaluation stated that Brown “need[s] to be proactive in 

addressing business needs and trends.” Also, the evaluation said that Brown 

“need[s] to take an active role in the pro desk. . . [and] [d]evelop pro paint 

business.” Finally, the evaluation instructed Brown to “listen to associates and 

address and coach areas of opportunity.”

Brown’s 2012 annual evaluation also raised significant concerns about 

his performance. It described that Brown “lack[s] in the enthusiasm and drive 

needed for consistent performance in all aspects of the business.” Specifically, 

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the evaluation noted that Brown “has to improve his focus on the big 3 

(customer service, instock, [sic] and store appearance).” 

In addition to these evaluations, Brown had numerous reprimands at the 

Marrero store. On July 12, 2011, Home Depot disciplined Brown when he 

failed to complete a mandatory checklist. On December 22, 2011, it

reprimanded Brown for failing to monitor and follow markdown procedures. 

On April 12, 2012, Home Depot disciplined Brown after his department made 

a “minimal execution” of “shrink plans” without any “follow up from Gerald 

Brown.” Again, on May 14, 2012, Brown failed to “ensure proper execution of 

shrink plans” and received a reprimand. Two months later, Home Depot 

disciplined Brown for failing to report a workplace injury.

Brown was reprimanded again on July 11, 2012 for the failure to follow 

markdown procedures. Brown received another discipline on January 19, 2013 

for failing to follow the attendance policy. His penultimate discipline occurred 

on February 1, 2013 after Brown could not “speak to the basics of the 

[contractor] business nor how to utilize report data” with the district 

management team. 

Home Depot issued its termination notice to Brown after a substandard 

performance on June 25, 2013 during a district business review. The notice 

explained that Brown had “not improved to an acceptable level of performance 

for a salaried associate. His lack of engagement continued along with no real 

sense of urgency or enthusiasm to try to improve to an acceptable level.”

Brown filed a charge with the Equal Employment Opportunity 

Commission (EEOC) and alleged that Home Depot terminated him because of 

his race. After Brown received a right to sue notice from the EEOC, he filed a 

complaint in the district court against Home Depot asserting race 

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discrimination in violation of federal and state law.1 Home Depot filed a motion 

for summary judgment and argued that Brown had no evidence to create a 

genuine issue of material fact.

The district court granted Home Depot’s motion for summary judgment 

and dismissed Brown’s action. The district court held that Brown could not 

establish a prima facie case of discrimination because Home Depot did not 

replace him with a person outside his protected class nor did it treat a similarly 

situated employee outside his protected class more favorably. Alternatively, 

the district court determined that Home Depot articulated a nondiscriminatory reason to terminate Brown – poor performance. It also found

that Brown failed to prove Home Depot’s reason was pretext for discrimination 

because he only disagreed with its belief that he performed inadequately. 

Brown now appeals. 

II.

We review the district court’s grant of summary judgment de novo.2

Summary judgment requires that the moving party establish that there is no 

genuine issue of material fact and that it is entitled to judgment as a matter of 

law.3

III.

Brown argues that he created a genuine issue of material fact that Home 

Depot terminated him based on race discrimination. The McDonnell Douglas

framework applies to race discrimination claims based on circumstantial 

evidence.4 Under McDonnell Douglas, the threshold inquiry is whether the

 

1 Brown asserted causes of action based on Title VII of the Civil Rights Act of 1964, 

42 U.S.C. § 1981, and Louisiana Statute § 23:301.

2 N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 

2015).

3 Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997).

4 Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir. 2004).

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plaintiff can establish a prima facie case of discrimination.5 If a plaintiff makes 

out his prima facie case, the burden shifts to the employer to articulate a 

legitimate non-discriminatory reason for its action.6 Finally, the burden shifts 

back to the plaintiff to prove that the articulated reason is pretext for 

discrimination.7

Assuming that Brown established a prima facie case, Home Depot 

articulated a legitimate non-discriminatory reason for its action. In particular, 

Home Depot explained that it terminated Brown after a history of poor 

performance and no improvement in his work. Thus, the burden shifts back to 

Brown to show that its reason was pretext for discrimination.

Brown argues that Home Depot’s articulated reason was pretext for 

discrimination because it was false or unworthy of credence. A plaintiff may 

show discriminatory pretext in two ways: (1) evidence of disparate treatment 

or (2) evidence that the proffered explanation is false or unworthy of credence.8

Brown argues only that Home Depot’s explanation is false.

Brown asserts that Home Depot’s reason is false because he did not 

violate Home Depot policies. However, Home Depot provided substantial 

documentation that reflected Brown’s poor performance. By contrast, Brown 

only argues that Home Depot incorrectly documented his conduct as violations 

because his performance actually satisfied company standards.9 This misses 

 

5 Willis v. Cleco Corp., 749 F.3d 314, 317-18, 320 (5th Cir. 2014).

6 Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015).

7 Id. 8 Id.

9 Brown claims that his write up on July 11, 2012 for failing to follow markdown 

procedures was “officially repudiated.” His record citation, though, reveals nothing to support 

that assertion. Brown also claims that Home Depot’s reprimand on January 19, 2013 for 

attendance violations “was a complete mistake” because he was scheduled for a later shift 

and did not miss work. However, Brown does not dispute that he sent the store manager a 

text message explaining that he was sick after he received multiple calls asking why he did 

not show up for work. Quite simply, if Brown was not on the schedule for that time period, 

he had no reason to give an excuse for missing work. 

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the mark; to show pretext for discrimination, it requires more than showing 

“an incorrect belief that an employee’s performance is inadequate.”10

Additionally, Brown argues that Home Depot failed to communicate its 

performance concerns to him.11 Nevertheless, Brown acknowledged that he 

received numerous write-ups that spanned from 2004 to 2013. Moreover, each 

reprimand outlined why Home Depot considered his conduct deficient, which 

gave Brown the chance to modify his work.

Finally, Brown argues that Home Depot’s reason is false because he 

received several performance awards. Even if Brown’s awards convinced us 

that Home Depot inaccurately assessed Brown’s performance – which they do 

not – that alone would be insufficient to support a finding of pretext.12

Therefore, the district court correctly concluded that Brown failed to 

demonstrate a genuine issue of material fact that Home Depot’s articulated 

reason was pretext for discrimination. 

IV.

For these reasons, we AFFIRM the judgment of the district court.

 

10 Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991).

11 In particular, Brown asserts that he did not see a write-up for the failure to report 

a workplace injury, an “action plan” for his final warning, and two “follow ups” on the action 

plan.

12 Cf. Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (“Even if 

the trier of fact chose to believe an employee’s assessment of his performance rather than the 

employer’s, that choice alone would not lead to a conclusion that the employer’s version is. . 

.pretext[.]”). 

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