IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30477 Summary Calendar _____________________
DON T BERRY
Plaintiff-Appellant
v.
CONDEA VISTA, doing business as Vista Chemical Co
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana Docket No. 98-CV-352 _________________________________________________________________ March 9, 2000 Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Don Berry (“Berry”) appeals from the
district court’s entry of summary judgment in favor of Defendant-
Appellee Condea Vista (“Vista”). For the reasons stated below,
we AFFIRM.
Berry is African-American. From 1986 until his termination
on December 7, 1995, Berry was employed by Vista at its Westlake,
Louisiana, facility. The Westlake facility manufactures
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. chemicals that, if handled improperly, could explode or pose an
environmental hazard. Berry was employed by Vista as a “pumper.”
As such, he was responsible for safely transferring chemicals
between various storage vessels. Vista claims that it terminated
Berry’s employment after he amassed ten separate work-rule
violations. These violations ranged from unexcused absences, to
arguing with superiors, to failing to follow safety procedures
and causing chemical spills. Berry contends that Vista
wrongfully terminated him because of his race, and thus violated
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2000e-17.
On November 8, 1996, Berry filed an official charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). On September 30, 1997, the EEOC mailed Berry a notice
that it would not be taking action against Vista and issued him a
right-to-sue letter. Prior to filing his charge with the EEOC,
Berry filed a pro se complaint in Louisiana state court. Berry
did not serve Vista with his complaint until February 5, 1998.
After being served, Vista removed the case to the district court
and moved for summary judgment. The district court found that,
although Berry was able to make out a prima facie case of
discrimination, he had failed to produce evidence indicating that
Vista’s proffered reasons for terminating him were mere pretext
for unlawful discrimination. Therefore, the district court
granted Vista’s motion for summary judgment and entered judgment
against Berry. Berry timely appeals.
2 A grant of summary judgment is reviewed de novo. See
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.
1997). The moving party is entitled to summary judgment if the
evidence indicates that there is no genuine issue as to any
material fact. See Fed. R. Civ. P. 56(c). While we view the
evidence in a light most favorable to the non-movant, see
Coleman, 113 F.3d at 533, the non-moving party is required to
come forward with specific facts indicating that there is a
genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
We analyze Title VII claims under the well-established
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under McDonnell Douglas, the Title VII plaintiff bears
the initial burden of proving a prima facie case of
discrimination. See id. at 802. If the plaintiff can make out a
prima facie case of discrimination, the burden shifts “to the
employer to articulate some legitimate reason” for terminating
the employee. Id.; see also Bodenheimer v. PPG Indus., 5 F.3d
955, 957 (5th Cir. 1993). If the employer produces legitimate,
non-discriminatory reasons for the plaintiff’s termination, the
burden shifts back to the plaintiff to produce evidence showing
that the employer’s proffered reasons were mere pretext for
otherwise unlawful discrimination. See Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1980); McDonnell Douglas,
411 U.S. at 804.
We agree with the district court that Berry established a
3 prima facie case of discrimination. We also agree that Vista
presented legitimate, non-discriminatory reasons for terminating
Berry, and that Berry failed to show that these reasons were mere
pretext for unlawful discrimination. Vista has come forward with
a significant amount of evidence indicating that Berry was an
unsatisfactory and unsafe employee, and that its decision to
terminate him was not based on race. Vista documents ten
separate work-rule violations by Berry, any number of which
provide Vista with legitimate, non-discriminatory reasons to
terminate his employment.
In attempting to rebut Vista’s evidence, Berry argues that a
white employee, Chris Sevier (“Sevier”), was treated differently
by Vista. Although Sevier was also terminated by Vista for work-
rule violations, Berry argues that Sevier’s violations were much
more serious than his, and therefore Sevier deserved to be
terminated. Furthermore, Berry contends that Vista was overly
tolerant of Sevier and should have terminated him much earlier
than it did. Berry claims that Vista did not afford him the same
tolerance shown to Sevier, and that it terminated him for
violations that were far less egregious than Sevier’s. Berry
argues that the evidence regarding Sevier represents a continuing
violation of Title VII by Vista. See Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 537 (5th Cir. 1998)
(discussing the admissibility of evidence in a case seeking to
prove a continuing violation of Title VII).
The district court, however, refused to consider Berry’s
4 evidence regarding Sevier, finding that such evidence was time-
barred. The district court interpreted Webb to hold that a
plaintiff may only base a discrimination claim upon conduct that
occurred no more than 300 days prior to the filing of an EEOC
charge. Because Berry’s official EEOC charge was not filed until
November 8, 1996, and Sevier was dismissed more than 300 days
before that date, the district court refused to consider any
evidence regarding Vista’s treatment of Sevier.
Even if we were to find that the district court improperly
refused to consider Berry’s evidence regarding Sevier, the
evidence indicates neither that Vista engaged in ongoing
discrimination, nor that its reasons for terminating Berry were
pretextual. Berry’s proffered evidence regarding Sevier is
purely speculative. Other than his own subjective views on the
issue, Berry offers no evidence that Vista treated him and Sevier
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30477 Summary Calendar _____________________
DON T BERRY
Plaintiff-Appellant
v.
CONDEA VISTA, doing business as Vista Chemical Co
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana Docket No. 98-CV-352 _________________________________________________________________ March 9, 2000 Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Don Berry (“Berry”) appeals from the
district court’s entry of summary judgment in favor of Defendant-
Appellee Condea Vista (“Vista”). For the reasons stated below,
we AFFIRM.
Berry is African-American. From 1986 until his termination
on December 7, 1995, Berry was employed by Vista at its Westlake,
Louisiana, facility. The Westlake facility manufactures
* 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. chemicals that, if handled improperly, could explode or pose an
environmental hazard. Berry was employed by Vista as a “pumper.”
As such, he was responsible for safely transferring chemicals
between various storage vessels. Vista claims that it terminated
Berry’s employment after he amassed ten separate work-rule
violations. These violations ranged from unexcused absences, to
arguing with superiors, to failing to follow safety procedures
and causing chemical spills. Berry contends that Vista
wrongfully terminated him because of his race, and thus violated
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2000e-17.
On November 8, 1996, Berry filed an official charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). On September 30, 1997, the EEOC mailed Berry a notice
that it would not be taking action against Vista and issued him a
right-to-sue letter. Prior to filing his charge with the EEOC,
Berry filed a pro se complaint in Louisiana state court. Berry
did not serve Vista with his complaint until February 5, 1998.
After being served, Vista removed the case to the district court
and moved for summary judgment. The district court found that,
although Berry was able to make out a prima facie case of
discrimination, he had failed to produce evidence indicating that
Vista’s proffered reasons for terminating him were mere pretext
for unlawful discrimination. Therefore, the district court
granted Vista’s motion for summary judgment and entered judgment
against Berry. Berry timely appeals.
2 A grant of summary judgment is reviewed de novo. See
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir.
1997). The moving party is entitled to summary judgment if the
evidence indicates that there is no genuine issue as to any
material fact. See Fed. R. Civ. P. 56(c). While we view the
evidence in a light most favorable to the non-movant, see
Coleman, 113 F.3d at 533, the non-moving party is required to
come forward with specific facts indicating that there is a
genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
We analyze Title VII claims under the well-established
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under McDonnell Douglas, the Title VII plaintiff bears
the initial burden of proving a prima facie case of
discrimination. See id. at 802. If the plaintiff can make out a
prima facie case of discrimination, the burden shifts “to the
employer to articulate some legitimate reason” for terminating
the employee. Id.; see also Bodenheimer v. PPG Indus., 5 F.3d
955, 957 (5th Cir. 1993). If the employer produces legitimate,
non-discriminatory reasons for the plaintiff’s termination, the
burden shifts back to the plaintiff to produce evidence showing
that the employer’s proffered reasons were mere pretext for
otherwise unlawful discrimination. See Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1980); McDonnell Douglas,
411 U.S. at 804.
We agree with the district court that Berry established a
3 prima facie case of discrimination. We also agree that Vista
presented legitimate, non-discriminatory reasons for terminating
Berry, and that Berry failed to show that these reasons were mere
pretext for unlawful discrimination. Vista has come forward with
a significant amount of evidence indicating that Berry was an
unsatisfactory and unsafe employee, and that its decision to
terminate him was not based on race. Vista documents ten
separate work-rule violations by Berry, any number of which
provide Vista with legitimate, non-discriminatory reasons to
terminate his employment.
In attempting to rebut Vista’s evidence, Berry argues that a
white employee, Chris Sevier (“Sevier”), was treated differently
by Vista. Although Sevier was also terminated by Vista for work-
rule violations, Berry argues that Sevier’s violations were much
more serious than his, and therefore Sevier deserved to be
terminated. Furthermore, Berry contends that Vista was overly
tolerant of Sevier and should have terminated him much earlier
than it did. Berry claims that Vista did not afford him the same
tolerance shown to Sevier, and that it terminated him for
violations that were far less egregious than Sevier’s. Berry
argues that the evidence regarding Sevier represents a continuing
violation of Title VII by Vista. See Webb v. Cardiothoracic
Surgery Assocs. of N. Texas, 139 F.3d 532, 537 (5th Cir. 1998)
(discussing the admissibility of evidence in a case seeking to
prove a continuing violation of Title VII).
The district court, however, refused to consider Berry’s
4 evidence regarding Sevier, finding that such evidence was time-
barred. The district court interpreted Webb to hold that a
plaintiff may only base a discrimination claim upon conduct that
occurred no more than 300 days prior to the filing of an EEOC
charge. Because Berry’s official EEOC charge was not filed until
November 8, 1996, and Sevier was dismissed more than 300 days
before that date, the district court refused to consider any
evidence regarding Vista’s treatment of Sevier.
Even if we were to find that the district court improperly
refused to consider Berry’s evidence regarding Sevier, the
evidence indicates neither that Vista engaged in ongoing
discrimination, nor that its reasons for terminating Berry were
pretextual. Berry’s proffered evidence regarding Sevier is
purely speculative. Other than his own subjective views on the
issue, Berry offers no evidence that Vista treated him and Sevier
differently. Berry’s subjective feeling that he was being
discriminated against can not defeat a motion for summary
judgment. See Grimes v. Texas Dept. of Mental Health and Mental
Retardation, 102 F.3d 137, 141 (5th Cir. 1996). Contrary to
Berry’s assertion of disparate treatment, the evidence indicates
that Berry and Sevier were each responsible for various work-
place violations, and both were warned numerous times that,
unless the quality of their work improved, they would be
terminated.
Berry claims that his last violation before being
terminated, failing to follow proper “lock-out” procedures, was
5 also committed by a white pipefitter, Leroy Trahan (“Trahan”),
and that Trahan was not disciplined. This supposed “evidence”
ignores the fact that Trahan was not even employed by Vista.
Although Trahan was working at the Vista plant, he was employed
by an independent contractor. Had Trahan in fact violated
Vista’s procedures, it was his employer’s duty to discipline him,
not Vista’s. Consequently, Vista’s treatment of Trahan has no
bearing on its disciplinary action against Berry.
Berry also relies on the affidavit of Ray Reynolds
(“Reynolds”), a union steward at Vista. Reynold’s affidavit
states that he “knows” that two of Berry’s former supervisors,
Don Barrow (“Barrow”) and Don Tolbert (“Tolbert”), are racist.
However, Reynold’s affidavit sets forth no basis for this belief.
Reynold’s affidavit fails to recount any activities or statements
by either Barrow or Tolbert that would lead him to believe that
they are racist. Additionally, the affidavit fails to
demonstrate a causal connection between the alleged racism and
Berry’s termination. Therefore, the affidavit does not
effectively rebut Vista’s legitimate reasons for terminating
Berry. See Boyd v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th
Cir. 1998).
In short, the evidence presented by Vista overwhelmingly
supports its contention that Berry was terminated because he was
unable to safely and competently perform his job functions.
Berry fails to offer any competent evidence to rebut Vista’s
legitimate, non-discriminatory reasons for terminating his
6 employment. Berry’s conjecture and speculation regarding Vista’s
motivation for terminating him does not constitute evidence of
racial discrimination. Therefore, we AFFIRM.