* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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 Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20646

SOPHARS KEAM,

PLAINTIFF-APPELLANT,

VERSUS

PROVIDENT LIFE AND ACCIDENT INS. CO.,

DEFENDANT APPELLEE.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-95-1550)

March 12, 1997

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Pro se appellant, Sophars Keam (“Keam”), is a naturalized

American citizen of Cambodian descent. Keam alleges that he was

terminated from his job as a data entry clerk for appellee,

Provident Life and Accident Ins. Co. (“Provident”), because of his

race, Asian, in violation of Title VII of the Civil Rights Act of

1964. The district court granted summary judgment in favor of2

Provident finding that no issues of material fact existed as to

Keam’s Title VII claim. Keam appeals asserting that he was denied

discovery concerning various matters and that he established a

prima facie case as to merits of his Title VII claim. We affirm.

BACKGROUND

Provident initially hired Keam on August 19, 1991, as a parttime mail clerk in its Houston claims office. Keam was eventually

promoted to the position of preclaim data entry clerk, but his

status remained part-time. Keam received five weeks of training in

data entry as part of his promotion. Keam’s primary job

responsibility as a preclaim data entry clerk was to input data

from medical claim forms into Provident’s computer system.

Performance for preclaim data entry clerks was measured in terms of

the number of claims processed per hour (“production”) and the

accuracy of the information inputted (“accuracy”). The production

requirement for preclaim data entry clerks was 35 claims per hour

o f which Keam was well aware. Keam’s accuracy always met or

exceeded required levels, and accordingly is not at issue in this

case.

Keamcompleted his training for preclaim data entry on June

26, 1992 and began his duties as a preclaim data entry clerk in

July of 1992. From July to September 1992, Keam failed to meet the

preclaim production requirement o f 35 claims processed per hour.

Keam averaged 25.79 claims per hour in July, 24.10 claims per hour3

in August, 25.68 claims per hour in September, and 27.55 claims in

October Because of this lack of productivity, Keam received a

verbal warning on October 30, 1992, from his immediate supervisor,

Machael Gossett (“Gossett”). In November and December 1992, Keam’s

performance improved and he satisfied the production requirement.

The next month, however, Provident introduced a new claims

inputting proce dure called rapid data entry (“RDE”) which would

eliminate the pre claim data function for most accounts thereby

eliminating Keam’s position. Preclaim data entry clerks, however,

were eligible for consideration as RDE clerks. Provident provided

all preclaim data entry clerks including Keam with nine weeks of

training on RDE claims processing. The productivity goals for RDE

claims processing began after training at 15 claims per hour. The

goal progressively increased by 4 claims per hour each week until

ultimately reaching 30 claims per hour.

Keam never met any of the weekly goals. Consequently, Keam

received a verbal warning from Gossett on May 6, 1993. This time,

however, Keam’s production did not improve foll owing the verbal

warning. On June 24 and 25, 1993, Gossett met with Keam to

determine why his performance had not improved. At the meeting,

Keam gave seve r al unsubstantiated reasons for his substandard

productivity including co-workers “froze” his computer, threatened

him if he performed well, and hit his chair. Gossett investigated

Keam’s allegations, but found them meritless. Thereafter, Gossett

issued Keam a Letter of Warning instructing Kea m to use his time1 Local Rule 5.D. of the Southern District of Texas provides that

no more than 25 interrogatories may be served without leave of

court.

4 more efficiently and that if he failed to do so he would be subject

to further disciplinary action. Additionally, Gossett arranged for

additional training for Keam. The additional training apparently

did not help Keam; he failed to meet production goals for the next

three months and as a result was placed on probation on November

15, 1993. In a memorandum from Gossett to Keam informing Keam of

his probationary status, Keam was warned that failure to im prove

his production could result in termination.

Keam’s performance never improved and on January 13, 1994 he

was terminated from his position as an RDE clerk. Keam, however,

was offered his old position as a mail clerk at the same salary he

was currently making in lieu of termination. Keam rejected the

offer.

On January 18, 1994, Keam filed a charge of d iscrimination

with the EEOC alleging that he had been terminated because of his

race. On March 30, 1995, the EEOC issued a no cause determination

finding that all clerks received the same training and that there

was no evidence indicating that race was a factor in Keam’s

termination. Keam subsequently filed this suit.

During the course of litigation, Keam filed numerous discovery

requests and motions. Keam initially served 27 interrogatories and

16 requests for production of documents. 1 Subsequently, Keam filed2 Provident no longer possessed these documents because it sold

this division of the company.

5 motions t o (1) serve additional interrogatories and request for

production of documents; (2) compel the p roduction of documents;

(3) compel answers to interrogatories. The district court granted

in part Keam’s motion to compel answers to interrogatories and

required Provident to provide job descriptions and wage scales in

response to interrogatory numbers 10 and 13. The district court

denied Keam’s m otion to compel the production of documents that

Provident no longer poss essed 2

, but required that Provident

supplement request number 14 which was for payment records for

preclaim data entry and RDE clerks from January 1, 1993, to January

1, 1994. Keam’s motion to serve more interrogatories and requests

for production of documents was denied.

Both Keam and Provident filed motions for summary judgment.

P rovident’s motion was granted. The lower court concluded that

Keam failed to establish a prima facie case under Title VII for

racial di scrimination because he did not adduce any evidence

regarding whether he was treated differently from other data entry

clerks. The district court also found that Provident articulated

a legitimate, nondiscriminatory reason for its action, Keam’s lack

of productivity.

STANDARD OF REVIEW

As to the merits of Keam’s claim, we review appeals from

summary judgment de novo

. G arcia v. Elf Atochem North America, 283 Keam worked for the “BFI Group.” This means that Keam processed

BFI claims. BFI was Provident’s largest client.

6 F.3d 446, 449 (5th Cir. 1994). Discovery matters are reviewed for

abuse of discretion. C oughlin v. Lee

, 946 F.2d 1152, 1 158 (5th

Cir. 1991). Briefs filed by pro se litigants are liberally

construed by this court. D ouglass v. United Services Auto. Ass’n

,

65 F.3d 452, 455 (5th Cir. 1995).

ANALYSIS

A. Discovery

Keam specifically contends that the distri ct court erred in

denying his motions to compel Int errogatories numbered 10 and 13

and Requests for Production of Documents numbered 8-15. Keam also

asserts that, in general, he was denied sufficient discovery.

Interrogatories 10 and 13 requested that Provident provide job

classifications and salaries for all Provident employees who worked

in the BFI group. 3 The district court granted this motion in part,

ordering Provident to provide job descriptions and wage information

for Document Control Clerks, RDE Clerks, and Preclaim Data Entry

Clerks only.

The documents requested by Keam include: copie s of time and

productivity records for everyone on the BFI team; copies of

employee evaluations for everyone on the BFI Team; and payment and

employment histories of selecte d employees. Except for the wage

records of other data entry clerks, these requests were denied7

either because Provident no longer had control over these documents

or it was unduly burdensome to produce the documents.

Keam does not establish that the distri ct court abused its

discretion i n denying any of his discovery requests. Provident

produced all information in its possession concerning Keam and all

other persons similarly situated. Information about non data entry

employees was properly denied becau se these employees were not

similarly situated and their pay and performance records were not

relevant. Moreover, Keam was not harmed by being denied discovery

to records that Provident no longer possessed.

Lastly, Keam’s contention that he was denied suff icient

discovery is unpersuasive. During the course of the litigation,

Keam actively engaged in discovery. His actions caused Provident

to produce more than 800 documents and the district court partially

granted two motions to compel answers to various discovery requests

filed by Keam. Furthermore, Keam does not illustrate, and it is

not clear, how further discovery would have helped resolve the

issues at hand. Keam “discovered” the documents needed to prove

his claim. The documents, however, contained no proof of wrongful

conduct on the part of Provident.

B. Keam’s Title VII Claim.

The basis of Keam’s Title VII claim is that Provident applied

different disciplinary stan dards to non-Asian data entry clerks,

i.e.

, Jana Pierson (white) and Corey Robinson (black) in the BFI8

group. The summary judgment evidence, however, does not comport

with Keam’s a ssertion. The record indicates that Pierson and

Taylor, like Keam, initially failed to meet productivity goals and

consequently were disciplin ed. The record also indicates that

Keam, Pierson, and Robinso n were counseled in the same manner

because of their lack of production and that they were all told

that failure to improve productivity could result in further

disciplinary action. Unlike Keam, however, both Robinson and

Pierson improved their productivity by meeting the claims-per-hour

goal set by Provident mak ing further disciplinary action

unnecessary. Plainly stated, Keam’s allegation that he was subject

to disparate treatment because of his race is unsupported by the

summary judgment evidence. As this court has stated, conclusory

allegations, speculation, and unsubstantiated assertions are

inadequate to survive a motion for summary judgment. S ee, e.g.,

Forsyth v. Barr

, 19 F.3d 1527, 1531 (5th Cir. 1994). Accordingly,

the judgment of the district court is AFFIRMED and the appellant’s

motion to expedite is denied as moot.