1 P ursuant to 5 th Cir. R. 47.5, the court has determined that this opinion s hould not be

published and is not precedent except under the limit ed circumstances set forth in 5 th Cir. R. 47.5.4.

--1-- IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________________

No. 01-11033

Summary Calendar

_________________________________

RICHARD MARTINEZ,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant-Appellee.

--------------------------------- Appeal from the United States District Court

for the Northern District of Texas

(00-CV-324)

--------------------------------- February 28, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge: 1

In this employ ment discrimination case, Plaintiff-Appellant Richard Martinez (“Martinez”)

appeals the district court’s entry of summary judgment in favor of Defendant-Appellee United Parcel

Service, Inc. (“UPS”). For the following reasons, we affirm the judgment of the district court.

I.

Martinez worked as a package car driver for UPS for nearly twenty years. As a UPS driver,--2--

he was also a member of the International Brotherhood of Teamsters, Local 577 (“the union”). The

terms and conditions of his employment were governed by the National Master United Parcel Service

Agreement and Southern Region Supplemental Agreement (“the National Master Agreement”).

Martinez was terminated after he was involved in an accident on April 2, 1999 in the parking lot of

one of his customers. The parking lot was sloped downward toward a road, and Martinez carelessly

forgot to use the emergency brake when he parked the car and went inside to deliver a next day air

letter. When he ret urned to his truck, it had rolled more than 50 feet into a chain link fence.

According to the accident report, the damage was estimated at $75. Pursuant to UPS policy

,

Martinez called to report the accident. He spoke to Rodney Lee, a UPS supervisor. After a UPS

investigation into the accident, the compan y co ncluded that it was avoidable. As a result of this

conclusion, UPS asked Martinez to submit to a drug test administered by an independent facilit y. The

results came back positive for marijuana. On April 13, 1999, UPS discharged Martinez under Article

52 of the National Master Agreement, citing an “avoidable runaway accident” as the cause.

Martinez subsequently filed a grievance contesting his discharge in accordance with Article

51 of the National Master Agreement. Init ially, he met with a UPS manager, Bob Barrows

(“Barrows”), and a union representative, Brian Ahearn (“Ahearn”). After that initial meet ing, at

which the drug test was discussed, Barrows determin ed t hat termination was proper and denied

Martinez’s grievance. A hearing was then conducted before a joint panel o f UPS and union

representatives. The panel unanimously upheld the termination and denied Martinez’s grievance.

Martinez brought this Title VII action against UPS, alleging national origin discrimination.

UPS moved for summary judgment, which the district court granted. Martinez then timely filed this

appeal.--3-- II.

Our analysis follows the fami l i ar burden shifting framework articulated in M cDonnell Douglas

Corp. v. Green

, 411 U.S. 792 (1973). UPS does not dispute that Martinez has satisfied his p rima

facie burden, and it contends that Martinez was fired as a result of his involvement in an avoidable

accident. The burden therefore shifts back to Martinez to show that this proffered explanation is

merely pretext for discrimination. The district court held that Martinez failed to create a genuine

issue of material fact regarding pretext. We review the judgment of the district court d e novo

. B low

v. City of San Antonio, Tex. , 236 F.3d 293, 296 (5 th Cir. 2001).

Martinez argues that pretext can be inferred from UPS’s more favorable treatment of a

similarly situate d driver who is Caucasian. Like Martinez, James C. Clements (“Clements”) was

involved in an avoidable roll-away accident. He was also terminated as a result of the accident, but

his grievance petition was more successful, and his discharge was reduced to a two week suspension.

Martinez acknowledges a critical distinction, however, between his case and Clements’, namely that

Clements also took a drug test after his accide nt and passed. This crucial difference belies any

suggestion that the two drivers were similarly situated. S ee Wyvill v. United Cos. Life Ins. Co.

, 212

F.3d 296, 304-05 (5 th Cir. 2000) (requiring “nearly identical” circumstances and noting that “striking

differences” between two situations accounted for different treatment).

Martinez attem

pts to avoid this distinction by attacking the validity of the drug test. Even if

he is correct, however, thi s argument does not give rise to an inference of pretext. Martinez has

failed to show that UPS treated him differently regarding the administration of the test or that it did

not rely on the test result in good faith. Similarly, the fact that UPS did not expressly state its reliance

on the drug test results during the termination and grievance procedures does not create a triable fact--4--

issue as to pretext. Martinez acknowledged in his deposition that Barrows was aware of the drug test

result during the first grievance meeting. Finally, Martinez claims that at the grievance hearing UPS

used an exaggerated damage estimate and overstated the dist ance that the truck rolled. This

argument, too, is insufficient t o avoid summary judgment, as it does not suggest that the panel’s

decision to uphold the termination decision was motivated by discrimination.

III.

As Martinez admits, his argument that the district court erred in granting summary judgment

centers on his contention that he received disparate treatment in relation to Clements. He has failed,

however, to account for the crucial distinction between the two cases–that he, not Clements, failed

the post-accident drug test. Because Martinez and Clements are therefore not similarly situated, any

comparison between them cannot yield an inference of discrimination. Accordingly, we AFFIRM the

district court’s entry of summary judgment in favor of UPS.