IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-20827 Summary Calendar _____________________

BRENDA DUBOSE,

Plaintiff-Appellant,

versus

LYONDELL-CITGO REFINING COMPANY, LTD.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-97-CV-1029) _________________________________________________________________

September 23, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Brenda Dubose appeals the district court’s granting of

summary judgment for her employer Lyondell-Citgo Refining Company

Limited (“LCR”). She argues that the district court erred when it

concluded that her claims for sex and pregnancy discrimination

failed as a matter of law. As we find no error on the part of the

district court, we affirm.

Brenda Dubose was employed as a security representative at

LCR’s Houston petrochemical refinery. As a member of LCR’s Health

and Safety Department, the security representatives, or security

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. guards as they were commonly referred to, reported to Mark

Steinfort, security supervisor. Dubose was assigned to work the

main gate of the refinery located between an incoming and outgoing

roadway of the refinery. The main gate house was a small building

with glass on three sides. Dubose was responsible for opening the

main gate entrance to allow traffic in and out of the refinery,

dispatch by radio the security guard who was on patrol duty, manage

the radio communications center for the refinery, handle the

procedure for responding to refinery emergencies, and doing

necessary paperwork.

In early January 1994, Dubose became pregnant with the child

of her former husband, Danny Dubose. She reported her pregnancy to

the LCR Human Resources Department soon thereafter. Sometime in

the beginning of February, Dubose began having a romantic affair

with Gary Williams, a shift supervisor in the LCR refinery’s Sulfur

Recovery Unit (“SRU”).

On February 22, Dubose reported to her supervisor, Mark

Steinfort, and to Lisa McCorquodale of the LCR Human Resources

Department that her ex-husband, Danny Dubose, who was employed by

one of the refinery’s on-site contractors, was harassing and

threatening her by telephone and in person at the refinery. She

further reported that on February 18, he left a note on the

windshield of her truck calling her a “slut,” while it was parked

at the nearby Gateway Motel. In her deposition, she admits that

she was at the Gateway Motel with LCR employee Gary Williams

2 engaged in sexual congress, while Williams was suppose to be on

duty at the SRU.

In late February, LCR’s Human Resources Department received

reports from security guards at the refinery about misconduct by

Dubose and Williams, specifically, that Dubose allowed Williams to

spend extended periods of time in the main gate house with her

during working hours; that Dubose and Williams left the refinery

together when Williams was on duty; and that Dubose, after the end

of her work shift, drove into the refinery, without proper

authorization, to visit Williams at the SRU. When questioned

during deposition about the truthfulness of such reports, Dubose

admitted to engaging in all of the reported conduct.

On February 21, Eric Finck, a security employee whom Dubose

was responsible for training, reported that Dubose left him alone

in the guard house for nearly three hours and returned accompanied

by Williams. Upon returning to the guard house, Finck observed

Dubose and Williams kissing. Finck further reported, similar to

the reports received from other LCR security guards, that on at

least two occasions, he observed the security guards standing

outside the gate house at shift change due to the buildings

occupation by Dubose and Williams. When asked at deposition about

the truthfulness of these accusations, Dubose admitted them all

with the exception of the kissing.

On February 24, Dubose met with Mark Steinfort and Lisa

McCorquodale regarding her prior reports of improper behavior by

3 her husband. Steinfort informed Dubose that LCR intended to notify

Danny Dubose’s employer of his improper behavior. Dubose was then

asked about the validity of the reports received from other LCR

security guards regarding her inappropriate behavior with Williams.

Following the meeting, Dubose was suspended with pay pending

further investigation into these allegations.

On March 1, Ms. McCorquodale, Mr. Steinfort, and Human

Resources Supervisor, Laurie Repnak Calaway, met with Dubose to

inform her that following the investigation into the allegations of

her misconduct with Williams, she was being terminated for

neglecting her employment duties. Specifically, Dubose was

terminated for allowing Williams into the gate house for extended

periods of time, because she was an unauthorized visitor to SRU

control room, and because she was observed hugging and kissing Mr.

Williams in the main gate house during her shift and while training

another security employee. On the same day, following a suspension

and investigation into the allegation of misconduct, Williams was

also terminated from LCR. On March 28, 1997, Dubose filed a charge

of discrimination against LCR pursuant to Title VII alleging

improper discriminatory termination based on sex and/or pregnancy.

Following LCR’s motion for summary judgment, the district court

granted summary judgment for LCR on both counts.

The only evidence, other than Dubose’s conclusory assertions

and nonrelevant contentions that other conduct more disruptive and

dangerous than hers by male employees resulted in lesser discipline

4 by LCR, is a series of various personnel records of employees of

LCR. After reviewing this evidence, it is clear that none of the

employees in these records are similarly situated to Dubose.1 As

correctly noted by the district court, none of the employees were

security guards, and none of the violative acts engaged in by the

employees were similar to those engaged in by Dubose. The only

arguably similarly situated employee, Mr. Williams, was discharged

for engaging in similar conduct.

After a review of the evidence in a light most favorable to

Dubose, it is clear that she has failed to make a prima facie

showing that she was treated differently from similarly situated

individuals because of her sex. Furthermore, even if Dubose was

able to establish a prima facie case, it is equally as clear that

the proffered reasons for discharge offered by LCR are valid.

Dubose was terminated for engaging in inappropriate behavior with

a co-worker, and as a result of her failure to fulfill her job

responsibilities. Dubose has admitted to engaging in the activities

cited by LCR, which form the basis for these grounds of dismissal.

Further, Dubose has failed to offer even one iota of evidence to

show that these grounds are pretextual. Thus, because Dubose has

failed to meet her burden, LCR is entitled to summary judgment on

this issue.

1 The plaintiff points to employment records detailing acts of destruction of company property, use of profanity, sleeping on the job, and use of company gasoline for personal use.

5 Dubose has failed to offer any credible evidence on the issue

of disparate treatment due to her pregnancy. The only evidence

offered consists of a series of innuendoes made by various company

employees, and her own subjective belief that the timing of her

announcement of her pregnancy and her termination “is suspicious.”

This evidence can hardly be sufficient to establish a prima facie

case for discrimination based on pregnancy. As such, LCR is

entitled to summary judgment on this issue.

We are in full agreement with the district court that Dubose

has failed to meet her burden of proof and has failed to raise any

genuine issue of material fact for trial. The judgment of the

district court is

A F F I R M E D.

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