* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 4, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-11403

_______________________

KEVIN A. MOORE,

Plaintiff-Appellant,

versus

UNITED PARCEL SERVICE, INC.

Defendant-Appellee.

_________________________________________________________________

On Appeal from the United States District Court

for the Northern District of Texas, Dallas Division

No. 3:023-CV-1399-L

________________________________________________________________

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM: *

This is a pro se appeal from the district court's grant

of summary judgment to defendant United Parcel Service, Inc.

(“UPS”) o n plaintiff Kevin Moore’s claims for discrimination,

hostile work environment, and retaliation under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and

42 U.S.C. § 1981. Because no genuine issues of material fact exist

with respect to Moore’s claims, we AFFIRM the district court’s

grant of summary judgment.

I. BACKGROUND2 Moore joined UPS as a part-time worker in April 2000. He

was a member of the Local 767 union, and the terms of his

employment were gov erned under a collective bargaining agreement

between UPS and the union. Under the agreement, employees may be

discharged for absenteeism after they have been given one initial

written wa rning. Also under the agreement, at the employer’s

discretion, employees may be issued more than one written warning

in order to correct performance or attendance problems. R. at 204,

213.

Moore started his employment at UPS as a pre-loader, but

began training as a driver in April 2001. Due to repeated

performance f ailures, as well as an accident, however, Moore was

disqualified from driving on May 12, 2001. In addition to his poor

performance as a driver, Moore was absent or tardy more than eighty

times during his last ten months of employment. Moore received his

first warning letter for his poor attendance after failing to

report to work on May 29, 2001.

On June 1, 2001, Moore filed a grievance contesting his

disqu alification as a driver. As a result of the grievance, a

settlement was reached between the union and UPS in which UPS

agreed to give Moore another opportunity at a driver position when

an opening became available. On July 11, 2001, after being late or

absent fou r times in the previous two weeks, UPS issued Moore a1 This action initiated the grievance proced ure for suspension

required under the collective bargaining agreement, but did not immediately

remove Moore from his job.

2 This action initiated the grievance procedure for termin ation

required under the collective bargaining agreement, but did not i mmediately

remove Moore from his job.

3 second warning letter for poor attendance. An intent to suspend

notification accompanied the second warning letter. 1

Between July 25, 2001 and August 31, 2001, Moore was late

or absent eight more times. On September 7, 2001, UPS issued Moore

an intent to terminate notification. 2 In response, on September

12, 2001, Moore f iled a grievance challenging the second warning

letter, the intent to suspend notification, and the int ent to

terminate notification. Following a hearing between the union and

UPS on September 26, 2001, Moore agreed to withdraw his grievance

and serve a suspension for his attendance infractions. In

exchange, UPS withdrew its intent to terminate.

Just two days later, on September 28, 2001, Moore once

again reported late to work. In response, UPS issued Moore another

inte nt to terminate notification. On October 10, 2001, Moore

reported late to work once again. On October 19, 2001, UPS

notified Moore that his employment was being terminat ed for poor

attendance. In response to the notification, Moore instead decided

to sign a separation notice, which voluntarily terminated his

employment.4 Notwithstanding the fact that he quit, Moore sued UPS for

Title VII violations. On appeal, we have construed his arguments

generously.

II. STANDARD OF REVIEW

We review the district court's summary judgment de novo.

Freeman v. Tex. Dep’t. of Crim. Justice

, 369 F.3d 854 (5th Cir.

2004). Summary judgment is proper when “the pleadings,

depositions, answers to interrogatories, an d admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” F E D

. R. C IV

. P. 56(c). The

burden is on the moving party to show that “there is an absence of

evidence to support the nonmoving party's case.” F reeman

, 369 F.3d

at 860 (citing Celotex Corp. v. Catrett

, 477 U.S. 317, 325, 106 S.

Ct. 2548, 2554 (1 986)). Once the moving party meets its initial

burden, the nonmoving party “must set forth specific facts showing

t hat there is a genuine issue for trial.” F E D

. R. C IV

. P. 56(e).

The nonmoving party, however, “cannot satisfy this burden with

conclusory allegations, unsubstantiated assertions, or only a

scintilla of eviden ce.” F reeman

, 369 F.3d at 860 (citations

omitted).

III. DISCUSSION

Moore challenges the district court’s summary judgment

rulings on his claims.5 A. Discrimination

Moore argues that he provided direct evidence of

discriminatory remarks made by his immediate supervisors as

required under Title VII. 42 U.S.C. § 2000e-2(a). Workplace

remarks are considered sufficient evidence of discrimination if

they are 1) related to the protected class of persons of which the

plaintiff is a member, 2) proximate in time to the complained-of

adverse employment decision, 3) made by an individual with

authority over the employment decision at issue, and 4) related to

the employment decision at issue. Rubinstein v. Adm’rs of Tulane

Educ. Fund , 218 F.3d 392, 401 (5th Cir. 2000) (citation omitted).

Moore fails to establish the second, third, and fourth

elements of the test. The racial epithets were allegedly made

between April 2000 and April 2001, and therefore were not proximate

in time to Moore’s termination in October 2001. Additionally, the

alleged epithets were made by individuals at UPS who did not have

authority over Moore’s termination. Further, there is no evidence

in the record that establishes that the remarks were related to the

decision to terminate Moore. Finally, it is undisputed that Moore

never complained of or reported any of the alleged remarks to

either his union or another manager. “Stray remarks with no

connection to an employment decision cannot create a fact issue

r egarding discriminatory intent and are insufficient to defeat6

summary judgment.” Scales v. Slater , 181 F.3d 703, 712 (5th Cir.

1999).

B ecause Moore failed to provide direct evidence of

discriminatio n, he must create a presumption of intentional

discrimination by estab lishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802-04, 93 S. Ct. 1817, 1824-25 (1973). To establish a prima facie

case of race disc rimination in an employment termination case,

Moore must prove that he “(1) is a member of a protected class;

(2) was qualified for h[is] position; (3) was subject to an adverse

employment action; and (4) was replaced by someone outside the

protected class, or, in the case of disparate treatment, shows that

others similarly situated were treated more favorably.” Okeye v.

Univ. of Tex. Houston Health Sci. Ctr. , 245 F.3d 507, 512-13 (5th

Cir. 2001) (citations and internal quotation marks omitted).

Moore has failed to provide evidence to show that others

similarly situated were treated more favorably. UPS records

indicate that Moore was late or absent from work more than eightyfive times during the last ten months of his e mployment. UPS

submitted evidence that it terminated Moore for poor attendance.

In an effort to satisfy the fourth element of the test,

Moore argues that two white employees were not disciplined for poor

attendance. The documents Moore provided to the district court,

however, were not authenticated or identified as UPS business

records pursuan t to F E D

. R. E VID

. 803(6), and were not accompanied7

by any explanatory information to aid the court in understanding

the statistical information contained in the documents. Therefore,

the district court correctly concluded that the evidence did not

support Moore’s claim. Since Moore did not provide the district

court with any additional evidence, he has not raised a genuine

issue of material fact that others similarly situated were treated

more favorably and cannot establish a prima facie case. The

district court correctly concluded that UPS was entitled to summary

judgment on Moore’s claim that he was terminated because of his

race.

B. Hostile Work Environment

Moore argues that he established the elements of a prima

facie case for a racially hostile work environment under Title VII.

To establish a prima facie case, Moore must prove that

(1) he belongs to a p rotected group; (2) he

was subjected to unwelcome harassment; (3) the

harassment complained of was based on race;

(4) the harassment complained of affected a

term, condition, or privilege of employment;

(5) the employer knew or should have known of

the harassment in question and failed to take

prompt remedial action.

Ramsey v. Henderson

, 286 F.3d 264, 268 (5th Ci r. 2002)(citations

omitted). “For harassment on the basis of race to affect a term,

condition, or privilege of employment

. . . it must be sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” I d.

(citations and internal quotation marks omitted). To determine8

whether a hostile work environment existed, a court must consider

“the frequency of the discriminatory conduct; its severity; whether

it is physically th reatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interf eres with an

employee’s work performance.” Id. (citations omitted).

Moore argues that several supervisors made a few racial

comments that created a hostile environment. Moore, however,

admitted that he never complained to UPS’s human resource

department or another supervisor about the comments. Moore failed

to provide evidenc e to establish that the few isolated comments

were so severe or pervasive that they affected a term, condition,

or privilege of employment, or unreasonab ly interfered with his

work performance. Moore also argued that the discipline he

received for being tardy or absent was further evidence of a

hostile work environment. As noted earlier, however, Moore, failed

to establish that the discipline was racially motivated.

Consequently, Moore failed to provide evidence sufficient to create

a material issue that his workplace was an abusive or hostile

working environment.

C. Retaliation

Moore finally contends that he established the elements

of a prima facie case of retaliation. This claim requires proof

that: (1) he engaged in a protected activity, (2) he experienced

an adverse employment action following the activity, and (3) there9

was a causal link between the protected activity and the adverse

employment action. M ontemayor v. City of San Antonio

, 276 F.3d

687, 692 (5th Cir. 2001). Under Title VII, an employee has engaged

in protected activity if he has “opposed any practice made an

unlawful employment practice by this subcha pter,” or “made a

charge, testified , assisted, or participated in any manner in an

investigation, proceeding, or hearing under this subchapter.”

42 U.S.C. § 2000e-3(a).

Moore argues that he was retaliated against for filing a

grievance on June 1, 2001 for his disqualification as a driver.

Moore, however, was not engaged in a protected activity, as his

grievance did not oppose or protest racial discrimination or any

other unlawful employment practice under Title VII. Rather, Moore

simply complained that UPS had violated its agreement with the

union. Moore’s grievance, which made no mention of race

discrimination, stated that he wa s following his supervisor’s

instructions when he returned to t he service center without

delivering his assigned packages. As such, Moore was not engaged

in a protected activity when he filed his grievance, and he cannot

establish a prima facie case f or retaliation. Therefore, the

district court correctly granted summary judgment to UPS on Moore’s

retaliation claim.

IV. CONCLUSION10 For the reasons discussed above, we AFFIRM the district

court’s ruling of summary judgment.