UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60135 Summary Calendar
EDWARD LAVERNE KELLEY,
Plaintiff - Appellant,
VERSUS
LOCKHEED MARTIN CORPORATION and LOCAL 2386, THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, A.F.L.-C.I.O,
Defendants - Appellees.
Appeal from the United States District Court For the Southern District of Mississippi (4:00-CV-178-LN) October 2, 2002
Before JOLLY, PARKER, and CLEMENT, Circuit Judges. * PER CURIAM:
Edward Laverne Kelley appeals the district court’s grant of
judgment as a matter of law to Defendant Lockheed Martin
Corporation (“Lockheed Martin”) in his Title VII suit and the grant
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 of summary judgment to Defendant International Association of
Machinists and Aerospace Workers (“Union”) in his 42 U.S.C. § 1981
suit. We affirm on both issues.
Kelley asserts that Lockheed Martin defamed him under
Mississippi state law and violated Title VII by discriminating
against him on the basis of race. He is black and contends that
his absences were treated differently from, and more harshly than,
absences of a white co-employee. Lockheed Martin counters that
Kelley was fired because of his pattern of unexcused absences, for
which he received counseling. Kelley, who is not a Union member,
also claims that the Union violated § 1981 by providing him with
less representation on his grievance against Lockheed Martin under
a collective bargaining agreement than it provided to similarly-
situated whites.
The district court granted summary judgment to the Union on
the basis that Kelley offered no evidence supporting a claim of a
§ 1981 violation. The court also granted in part and denied in
part Lockheed Martin’s motion for summary judgment. The case
proceeded to trial against Lockheed Martin only, on the Title VII
claim only. Lockheed Martin moved for judgment as a matter of law
under FED. R. CIV. P. 50 at the close of Kelley’s case-in-chief,
which the court denied. The jury was unable to reach a verdict and
the court declared a mistrial. Lockheed Martin renewed its
judgment as a matter of law motion, which the court then granted.
Kelley moved for reconsideration or for a new trial, which the
2 court denied. He now appeals both the district court’s grant of
judgment as a matter of law in his case against Lockheed Martin and
the court’s grant of summary judgment in his case against the
Union.
We review de novo a grant of judgment as a matter of law.
Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs,
Inc., 293 F.3d 912, 917 (5th Cir. 2002). Judgment as a matter of
law is appropriate if “there is no legally sufficient evidentiary
basis for a reasonable party to find for [a] party on [an] issue.”
Id.; FED. R. CIV. P. 50(a). Reviewing all of the evidence in the
record, a “court must draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility determinations
or weigh the evidence.” 293 F.3d at 917 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
We also review de novo a grant of summary judgment. Sreeram
v. Louisiana State University Medical Center - Shreveport, 188 F.3d
314, 318 (5th Cir. 1999). We will reverse the district court’s
ruling only if we determine that the pleadings and evidence
establish that there is a genuine issue of material fact. Id.; FED
R. CIV. P. 56(c).
The elements of the claims in Title VII and § 1981 cases are
the same. Pratt v. City of Houston, Tex., 247 F.3d 601, 606 n.1
(5thCir. 2001). That is, to show a prima facie case of race
discrimination, the plaintiff must show that (1) he was a member of
3 a protected class, (2) he was qualified for the position, (3) he
was terminated or subject to an adverse employment action, and (4)
he was treated more harshly than a person not in the protected
class. Id. n.2 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973)); Sreeram, 188 F.3d at 318. The plaintiff must
show that the employer gave preferential treatment to another
employee under nearly identical circumstances; that is, that the
misconduct for which the plaintiff was discharged was nearly
identical to that engaged in by other employees. Okoye v. The
Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 514 (5th
Cir. 2001)(citations omitted). Once the prima facie case is
established, a presumption of discrimination exists and the burden
shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the challenged employment action. Pratt,
247 F.3d at 606.
Kelley, who is black and thus in a protected class, claimed
that Lockheed Martin violated Title VII by treating him more
harshly for his absences, and eventually terminating his
employment, than it did a white employee by the name of Carlton
Floyd. He characterized Floyd as being in a nearly identical
position, or similarly situated, to himself. On that basis, the
district court initially ruled that Kelley had made out a prima
facie case and denied Lockheed Martin’s motion for summary judgment
on the Title VII claim because a genuine issue of material fact
4 existed. At trial, however, the admissible evidence presented by
both parties yielded a different picture. Over the pertinent two-
year period, Kelley had been absent, arrived late, or departed
early some 49 times. He had been counseled on his absenteeism, had
received written notice of warnings, had been subject to
discipline, and was aware that he was in jeopardy of being fired if
he incurred one more unauthorized absence. He pointed to Lockheed
Martin’s retention of Floyd following a series of absences to
illustrate his claim of discriminatory treatment. Floyd, however,
was absent less than half the number of times as Kelley in the same
period: 24 total. He had not been given the benefit of counseling,
as Kelley had been. He had been made subject to a three-day
disciplinary layoff, as Kelley had been, but which was rescinded
when Floyd was able to point out a date error on his record that
prematurely marked him for discipline. There was no such error on
Kelley’s record. As the district court determined, Floyd was not
in a nearly identical position or similarly situated to Kelley.
Kelley’s testimony regarding friction between himself and several
co-workers and supervisors, of various races, does not aid him
because he cannot show any connection to discriminatory
disciplinary action taken against him. Furthermore, Kelley’s
testimony pointing out other black employees who received favorable
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60135 Summary Calendar
EDWARD LAVERNE KELLEY,
Plaintiff - Appellant,
VERSUS
LOCKHEED MARTIN CORPORATION and LOCAL 2386, THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, A.F.L.-C.I.O,
Defendants - Appellees.
Appeal from the United States District Court For the Southern District of Mississippi (4:00-CV-178-LN) October 2, 2002
Before JOLLY, PARKER, and CLEMENT, Circuit Judges. * PER CURIAM:
Edward Laverne Kelley appeals the district court’s grant of
judgment as a matter of law to Defendant Lockheed Martin
Corporation (“Lockheed Martin”) in his Title VII suit and the grant
* 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.
1 of summary judgment to Defendant International Association of
Machinists and Aerospace Workers (“Union”) in his 42 U.S.C. § 1981
suit. We affirm on both issues.
Kelley asserts that Lockheed Martin defamed him under
Mississippi state law and violated Title VII by discriminating
against him on the basis of race. He is black and contends that
his absences were treated differently from, and more harshly than,
absences of a white co-employee. Lockheed Martin counters that
Kelley was fired because of his pattern of unexcused absences, for
which he received counseling. Kelley, who is not a Union member,
also claims that the Union violated § 1981 by providing him with
less representation on his grievance against Lockheed Martin under
a collective bargaining agreement than it provided to similarly-
situated whites.
The district court granted summary judgment to the Union on
the basis that Kelley offered no evidence supporting a claim of a
§ 1981 violation. The court also granted in part and denied in
part Lockheed Martin’s motion for summary judgment. The case
proceeded to trial against Lockheed Martin only, on the Title VII
claim only. Lockheed Martin moved for judgment as a matter of law
under FED. R. CIV. P. 50 at the close of Kelley’s case-in-chief,
which the court denied. The jury was unable to reach a verdict and
the court declared a mistrial. Lockheed Martin renewed its
judgment as a matter of law motion, which the court then granted.
Kelley moved for reconsideration or for a new trial, which the
2 court denied. He now appeals both the district court’s grant of
judgment as a matter of law in his case against Lockheed Martin and
the court’s grant of summary judgment in his case against the
Union.
We review de novo a grant of judgment as a matter of law.
Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs,
Inc., 293 F.3d 912, 917 (5th Cir. 2002). Judgment as a matter of
law is appropriate if “there is no legally sufficient evidentiary
basis for a reasonable party to find for [a] party on [an] issue.”
Id.; FED. R. CIV. P. 50(a). Reviewing all of the evidence in the
record, a “court must draw all reasonable inferences in favor of
the nonmoving party, and it may not make credibility determinations
or weigh the evidence.” 293 F.3d at 917 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
We also review de novo a grant of summary judgment. Sreeram
v. Louisiana State University Medical Center - Shreveport, 188 F.3d
314, 318 (5th Cir. 1999). We will reverse the district court’s
ruling only if we determine that the pleadings and evidence
establish that there is a genuine issue of material fact. Id.; FED
R. CIV. P. 56(c).
The elements of the claims in Title VII and § 1981 cases are
the same. Pratt v. City of Houston, Tex., 247 F.3d 601, 606 n.1
(5thCir. 2001). That is, to show a prima facie case of race
discrimination, the plaintiff must show that (1) he was a member of
3 a protected class, (2) he was qualified for the position, (3) he
was terminated or subject to an adverse employment action, and (4)
he was treated more harshly than a person not in the protected
class. Id. n.2 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973)); Sreeram, 188 F.3d at 318. The plaintiff must
show that the employer gave preferential treatment to another
employee under nearly identical circumstances; that is, that the
misconduct for which the plaintiff was discharged was nearly
identical to that engaged in by other employees. Okoye v. The
Univ. of Tex. Houston Health Science Ctr., 245 F.3d 507, 514 (5th
Cir. 2001)(citations omitted). Once the prima facie case is
established, a presumption of discrimination exists and the burden
shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the challenged employment action. Pratt,
247 F.3d at 606.
Kelley, who is black and thus in a protected class, claimed
that Lockheed Martin violated Title VII by treating him more
harshly for his absences, and eventually terminating his
employment, than it did a white employee by the name of Carlton
Floyd. He characterized Floyd as being in a nearly identical
position, or similarly situated, to himself. On that basis, the
district court initially ruled that Kelley had made out a prima
facie case and denied Lockheed Martin’s motion for summary judgment
on the Title VII claim because a genuine issue of material fact
4 existed. At trial, however, the admissible evidence presented by
both parties yielded a different picture. Over the pertinent two-
year period, Kelley had been absent, arrived late, or departed
early some 49 times. He had been counseled on his absenteeism, had
received written notice of warnings, had been subject to
discipline, and was aware that he was in jeopardy of being fired if
he incurred one more unauthorized absence. He pointed to Lockheed
Martin’s retention of Floyd following a series of absences to
illustrate his claim of discriminatory treatment. Floyd, however,
was absent less than half the number of times as Kelley in the same
period: 24 total. He had not been given the benefit of counseling,
as Kelley had been. He had been made subject to a three-day
disciplinary layoff, as Kelley had been, but which was rescinded
when Floyd was able to point out a date error on his record that
prematurely marked him for discipline. There was no such error on
Kelley’s record. As the district court determined, Floyd was not
in a nearly identical position or similarly situated to Kelley.
Kelley’s testimony regarding friction between himself and several
co-workers and supervisors, of various races, does not aid him
because he cannot show any connection to discriminatory
disciplinary action taken against him. Furthermore, Kelley’s
testimony pointing out other black employees who received favorable
treatment over him undermined his own argument that Lockheed Martin
acted discriminatorily based on race. Kelley adduced no evidence
at trial and nothing new on appeal in support of his Title VII
5 claim. As presented, he cannot show that Lockheed Martin
intentionally discriminated against him on the basis of race and
there is no remaining genuine issue of material fact.
Kelley also contended to the district court that the Union had
treated his request for representation differently from that
afforded Floyd. He asserted that the Union had provided more
favorable review assistance to Floyd than that afforded him, and
that the Union voted to deny his request for arbitration. The
district court ruled that he had provided no evidence in support of
his claim, and granted summary judgment to the Union. As just
discussed, Floyd was not similarly situated to Kelley, and Kelley
cannot show race-based discrimination on that basis. In
deposition, Kelley complained that the Union’s representative, Ida
Delk, did not represent him to his satisfaction. He also stated,
however, that regarding treatment afforded to a white employee, he
had “no idea how they was represented” and could not say that such
representation was any different from that afforded him.
Furthermore, Kelley admitted that he knew of no other employee
grievance taken to arbitration by the Union. He has provided no
evidence to show a § 1981 violation on the Union’s part.
For the reasons stated herein, we AFFIRM both rulings of the
district court.