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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.,

(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,

, 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,

(1986).

We analyze Title VII claims under the well-established

framework of McDonnell Douglas Corp. v. Green,

(1973). Under McDonnell Douglas, the Title VII plaintiff bears

the initial burden of proving a prima facie case of

discrimination. See

. 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.,

(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,

(1980); McDonnell Douglas,

.

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,

(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,

(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.,

(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.

7