IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 96-20556

Summary Calendar ____________________

GUOHU (KENNY) PENG

Plaintiff-Appellant

v.

SINO PAC INTERNATIONAL CORPORATION INC

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-94-1385) _________________________________________________________________ February 18, 1997 Before KING, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Guohu Peng appeals the district court’s grant of summary

judgment in favor of Sinopac International Corporation, Inc..

Finding no error, we affirm the judgment of the district court.

I. BACKGROUND

A. Procedural History

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 Peng, a citizen of the People’s Republic of China

temporarily in the United States on a work visa, sued Sinopac, a

Chinese owned and managed company, under Title VII of the Civil

Rights Act of 19641 and for unspecified state law claims2 on

April 22, 1994. Peng alleged that Sinopac discriminated against

him on the basis of national origin by paying him less than

American employees in equivalent positions, and by generally

denying him the same terms and conditions of employment as the

American employees. Peng also claimed that Sinopac discriminated

against him by harassing him and intimidating him because of his

association with a white American woman, discouraging him from

associating with her, and finally terminating his employment

because of his association with her. The district court granted

Sinopac’s Motion for Summary Judgment. After Peng’s attorneys

withdrew from the case, Peng, proceeding pro se, filed a Motion

for New Trial and a Motion to Vacate and Set Aside Judgment. The

district court denied both motions. Peng, continuing pro se,

appeals the judgment of the district court.

B. Statement of Facts

Except as noted, the following facts are drawn from Peng’s

affidavit, filed in response to Sinopac’s motion for summary

judgment, and from excerpts of his deposition testimony, offered

1 42 U.S.C. § 2000e-2000e-17,

. 2 Peng’s attorney informed the district court in a pretrial conference that there were no state law claims.

2 by Sinopac in support of its motion for summary judgment. Peng

is a citizen of the People’s Republic of China with a degree in

electrical engineering. Peng was hired to work for the Chinese

affiliate of Sinopac, a corporation owned by Frank Lin, as

manager of Quality Control in March 1990. From January 1 through

May 15, 1991, Peng was employed by the Mexican affiliate of

Sinopac in Reynosa, Mexico as Chief Engineer and Quality Control

Consultant.

Between May 15, 1991, and August 1, 1991, Peng worked at

Sinopac’s Cleveland, Texas plant on a B-1 visitor visa. On

August 1, 1991, Peng obtained an H-1-B visa to work as Chief

Engineer at the Sinopac plant in Cleveland. Since he lived in a

company trailer on Sinopac premises, Sinopac asked him to check

the plant at night when the alarm went off.

According to Patty Smith’s deposition testimony, which

Sinopac included in support of its motion for summary judgment,

Patty Smith was an employee of Sinopac from September 1991 until

September 1992. Peng and Smith started dating sometime around

the end of 1991 or early 1992. Smith obtained a divorce from her

husband of nine months at the end of February 1992. Shortly

after Smith and Peng started dating, Smith and her three small

children moved into the company trailer with Peng. During the

time they lived together, Peng and Smith considered themselves to

be common-law husband and wife, but they never told anyone at the

management level or in the personnel department of Sinopac that

3 they were married.

Peng and Frank Lin had several communications regarding

Peng’s association with Smith. From these communications, Peng

received the distinct impression that Lin thought it would be in

Peng’s best interest not to associate with or marry Smith, and

that Lin was angry with Peng for not complying with Lin’s wishes

by disassociating himself from Smith.

On October 29, 1992, Peng received a fax from Lin in which

Lin ordered him to transfer to China for a few months to help the

Sinopac factory there. On October 30, Peng gave the required

notice to take two weeks of vacation starting on November 9. The

record contains a fax from Lin to Peng in which Lin instructs

Peng to take his vacation from November 2 to November 13 and then

return immediately to China “due the factory in China need your

help to set up ISO 9000 QC System for BABT inspection.” Lin

concluded by saying, “Pl confirm by signing back this fax to me

to have this arrangement in force.” Peng received the fax but

did not confirm it, as requested by Lin. Instead, Peng went to

McAllen, Texas during his vacation to look for a new job. Peng

accepted an offer from Michael London, a part owner of the

Sinopac-affiliated Mexican factory.

On November 10, Lin sent a fax to Peng, with a copy to Wang,

instructing Wang to arrange an airline ticket for Peng to return

to China on November 14 as scheduled. On November 13, Wang

inquired about Peng’s schedule so that he could make the flight

4 reservation and informed Peng that “[a]s of Monday, November 16,

1992, your position will be to work at the China factory. Before

you leave here you can still come to the Cleveland factory to

pick up your personal belongings.”

On November 15, Peng returned to work at the Cleveland

factory. On November 19, Peng was informed that he was no longer

an employee of Sinopac.

II. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, applying the

same criteria used by the district court. Norman v. Apache

Corp.,

(5th Cir. 1994). First, we consult the

applicable law to ascertain the material factual issues. King v.

Chide,

(5th Cir. 1992). We then review the

evidence bearing on those issues, viewing the facts and

inferences to be drawn therefrom in the light most favorable to

the nonmoving party. Lemelle v. Universal Mfg. Corp.,

(5th Cir. 1994). Summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and

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 judgment as a matter of law.”

FED. R. CIV. P. 56(c).

5 In an employment discrimination case, the court must engage

in a burden shifting analysis. Under the Supreme Court’s

McDonnell Douglas framework, the plaintiff must first establish a

prima facie case by a preponderance of the evidence. McDonnell

Douglas Corp. v. Green,

(1973); Rhodes v.

Guiberson Oil Tools,

(5th Cir. 1996)(en banc).

The prima facie case raises an inference of discrimination.

Rhodes,

. The burden of production then shifts to

the defendant to provide a legitimate nondiscriminatory reason

for its employment action.

. If the defendant

meets its burden, the plaintiff has the opportunity to show that

the rationale offered by the defendant was a mere pretext.

. A plaintiff can avoid summary judgment “if the evidence

taken as a whole (1) creates a fact issue as to whether each of

the employer’s stated reasons was what actually motivated the

employer and (2) creates a reasonable inference that [national

origin] was a determinative factor in the actions of which

plaintiff complains.” Rhodes,

.

B. Analysis

Title VII provides in part:

It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .

6 42 U.S.C. § 2000e-2. Peng claims that Sinopac discriminated

against him on the basis of national origin on the following

grounds: 1) his salary was not comparable to the salaries of

American employees in equivalent, or even subordinate, positions;

2) he was refused vacation benefits that were not refused to

other employees; 3) he was transferred to China because he

requested a vacation and because he was associating with an

American woman; 4) throughout his employment he was harassed,

intimidated, and threatened with layoff or transfer if he did not

cease associating with an American woman; and finally 5) he was

wrongfully discharged because of his association with an American

woman.

1. Terms and Conditions of Employment

In his brief on appeal, Peng objects to the documents

introduced by Sinopac in support of its motion for summary

judgment. Peng asserts that certain documents prepared by

employees of Sinopac concerning his job-related misconduct were

not business records admissible under Federal Rule of Evidence

803(6) because they were not made in the regular course of

business but were prepared in anticipation of litigation. He

also argues that the documents were not properly authenticated.

Although Peng raises these objections now, he failed to

object to the evidence in his response to the motion for summary

judgment. Peng did not point out with specificity what portions

7 of the record should be deemed inadmissible. He neither pointed

out the grounds upon which any of the documents were inadmissible

nor cited any legal foundation for their inadmissibility. We

decline to review arguments that Peng failed to raise in response

to Sinopac’s motion for summary judgment. Williams v. Time

Warner Operation, Inc.,

(5th Cir. 1996).

Peng also argues on appeal that the district court erred in

concluding that Peng had not raised a fact issue on whether he

was paid equivalently to white American employees. Peng states

that the only evidence Sinopac offered was Peng’s payroll record

in 1992 and a summary of its salaried employees’ personal

information and rates of pay in 1992. Initially, the summary was

contained in the brief in support of the motion for summary

judgment. Later, Sinopac filed an affidavit of Flora Lin, the

vice president of Sinopac and current custodian of the records,

attesting to the accuracy of the summary. Peng argues on appeal

that the summary should not have been admitted into evidence

because it was inadmissible under Federal Rule of Evidence 1006.

He did not raise this argument in the court below.

Ironically, although Peng insists that Sinopac’s evidence

should not have been admitted, Peng presented no evidence of the

salaries of other employees to make his claim and chose to rely

on the information presented by Sinopac. Based on this evidence,

Peng argues in his brief on appeal that his average pay was

substantially less than that of the Foreign Trade Zone Manager,

8 the Personnel Manager, and the security officer. Peng has

produced no statistics that compare the average salary of various

employees over a period of time.

Sinopac’s evidence, upon which Peng relies, shows only the

bi-weekly salary of various employees in 1992. From this

evidence, it is clear that after Peng was promoted to Assistant

Plant Manager he was paid more than the Personnel Manager and the

security officer. It is also clear that after the Foreign Trade

Zone Manager received a raise from $830 per pay period to $1,100

per pay period at some point during 1992, the Foreign Trade Zone

Manager was paid more Peng, who was paid $875 per pay period from

May through October 1992. This single statistic alone, however,

is not enough to create a genuine issue of material fact.

During the time that Peng worked at Sinopac, he received at

least six raises, the latest of which increased his salary by

$205 per pay period. At the time his employment was terminated,

Peng received more money than all of the white American salaried

employees except for the Executive Vice President, the Controller

in Houston, and the Foreign Trade Zone Manager. The fact that

Peng received a lower salary than three senior white American

employees does not create a genuine issue of material fact as to

whether Peng was discriminated against on the basis of national

origin in light of the evidence that he was paid more than every

other white American salaried employee at Sinopac.

Peng claims that he did not receive the same vacation

9 benefits as the white American employees. Peng introduced no

evidence that he ever attempted to take a vacation until November

1992. At that time, he requested a vacation, and it was approved

immediately. Although Peng was never paid for his vacation time,

Peng admits in his affidavit that he was told he would be paid

for his vacation as soon as he arrived in China. Peng never

reported to work in China.

2. Transfer and Termination

Assuming, arguendo, that Peng established a prima facie case

that Sinopac’s attempt to transfer him and eventual termination

of his employment discriminated against him on the basis of

national origin, the burden then shifts to Sinopac to articulate

a legitimate nondiscriminatory reason for its adverse employment

actions. Rhodes,

. In affidavits and

deposition testimony in support of its motion for summary

judgment, Sinopac provided two nondiscriminatory reasons for its

decision to transfer Peng back to China and two nondiscriminatory

reasons for its ultimate decision to terminate Peng’s employment.

First, Frank Lin explained in his deposition that the

factory in China was rushing to prepare for an inspection by the

British Approval Board of Telecommunications. As Peng was the

former Quality Control Manager of that factory, Lin maintained

that he wanted to transfer Peng back to China for several months

to assist in the preparation for the inspection.

10 Second, as Flora Lin explained in her affidavit, the

transfer made sense from the perspective of employee

compatibility. She said the decision to send Peng to China was

not finalized until complaints were received from Plant Manager

Wang and the Executive Director regarding Peng’s behavior and

requesting his removal from the plant. In his deposition, Peng

admitted getting into numerous arguments and fights with both

Carolyn Slater, the Personnel Director, and Steve Wang.

Third, in her affidavit, Flora Lin states that “Peng’s

employment was not terminated until he failed to return to China

for assignment as requested.” According to an excerpt from the

Sinopac Employee Policy, which was offered in support of

Sinopac’s motion for summary judgment, an employee may be

terminated if he fails to report to work for three consecutive

days. The excerpt was attached to an affidavit of Jack Patterson,

the Contoller for Sinopac, who attested to its accuracy.

Fourth, Sinopac had a nondiscriminatory reason to object to

Peng’s relationship with Smith. In her affidavit, Flora Lin

states that “Peng was not told that he could not associate with

Patti Smith. However, he was told that only approved Company

managers could live in the Company’s trailer.” Thus, Peng

violated company rules by inviting Smith to live with him in a

company-owned trailer on the company premises.

In articulating these reasons for its employment decisions,

Sinopac met its burden of production. St. Mary’s Honor Ctr. v.

11 Hicks,

(1993)(“By producing evidence (whether

ultimately persuasive or not) of nondiscriminatory reasons,

petitioners sustained their burden of production.”). Under the

burden-shifting analysis, we now examine whether Peng has

successfully demonstrated that Sinopac’s articulated reasons for

its employment decisions were merely a pretext for

discrimination. Rhodes,

.

In attempting to show that Sinopac’s proffered reasons are a

pretext used to disguise its discriminatory motive, Peng points

to the communications between himself and Lin regarding his

association with Smith. Clearly, Lin did not think it was a good

idea for Peng to be involved with Smith. While Lin’s continued

involvement in Peng’s personal life may have been inappropriate,

evidence of that involvement does not negate the fact that

Sinopac has offered several nondiscriminatory reasons for its

employment actions.

Peng complains extensively about the treatment he received

as an employee of Sinopac, but he produces nothing to refute

Sinopac’s reasons for its employment actions. He does not adduce

any evidence to suggest that he was not needed immediately in

China to help the factory there prepare for inspection. Although

he objects to reports detailing his confrontational and hostile

behavior prepared by Slater, Wang, and the security officer in

December 1992, Peng admits in his deposition that he got in

numerous arguments and fights with all three people.

12 Furthermore, Peng makes no attempt to challenge Sinopac’s claim

that he violated employee policies and that such violations can

result in termination. Peng adduces no evidence of any white

Americans who behaved in a similar manner and were treated

differently. Peng’s unsupported assertion that he was

discriminated against on the basis of national origin and his

testimony based on conjecture alone are insufficient to raise a

fact issue to defeat summary judgment. Lechuga v. Southern

Pacific Transp. Co.,

(5th Cir. 1992).

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

13