IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-30372

RUSSEL SENEGAL, JR., Plaintiff-Appellant,

versus

STULLER SETTINGS INC, improperly named Stuller Settings

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Louisiana No. 97-CV-2468

April 11, 2000

Before KING, Chief Judge, REAVLEY, and STEWART, Circuit Judges. PER CURIAM:*

Plaintiff-Appellant Russel Senegal, Jr. (“Senegal”) appeals the grant of summary judgment

in favor of Stuller Settings (“Stuller”), in this race discrimination in employment suit. We affirm the

district court’s judgment having found no evidence that racial animus was the impetus for Senegal’s

discharge.

We review the grant or denial of a motion for summary judgment de novo. See Long v.

Eastfield College,

(5th Cir. 1996). In an employment discrimination case, we focus

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. on whether a genuine issue exists as to whether the defendant intentionally discriminated against the

plaintiff. Allegations alone are inadequate to satisfy the burden the non-movant shoulders, thus it is

incumbent upon the non-moving party to present evidence that racism motivated the adverse

employment action.

It is undisputed that Senegal was repeatedly disciplined, as many as sixteen times, for

misconduct in the workplace, despite his ability to perform his job in an exemplary fashion. Senegal’s

infractions ranged from tardiness and absences to numerous incidents of “clowning around” and

“bully behavior”. The record indicates that horseplay by workers was prevalent in the assembly

department at Stuller. There is however, ample evidence that Stuller equally applied to all employees

a structured progressive discipline policy which began with warning an employee and devising an

improvement plan, and would escalate to probation, suspension, issuance of a final warning and

ultimately termination. Senegal was eventually terminated for causing “disharmony in the work

place” when he, aft er having been placed on probation for tardiness, and after receiving a final

warning for five past incidents of misconduct, engaged in a public altercation with manager Dwane

Thibodeaux. Senegal was terminated in accordance with the terms of his probation for violating an

established company policy. Thus, Senegal’s only grievance is that he was discriminated against in

his termination, in that there was disparate treatment in his discharge. As for Senegal’s disparate

treatment termination claim which involves the violation of a work rule, to establish a prima facie

case, the plaintiff must show: membership in a protected group, qualification for the position held,

termination, and either, that the individual did not violate the work rule, or that similarly situated

white employees who engaged in the same conduct were not punished similarly.

Senegal does not fulfill his burden of proving that similarly situated white employees were

treated differently than him. His counsel points to the conduct of Dwane Thibodeaux and Randal

Rodriguez. Thibodeaux was a manager at Stuller and was involved in the altercation which lead to

Senegal’s termination. He was not on probation at the time, but after the incident he was placed on

probation, suspended without pay for three days, and issued a final warning. Later while on

probation, Thibodeaux was involved in another dispute with Randal Rodriguez. Nothing in the record indicates that Rodriguez was on probation at the time. Nevertheless, for that incident

Thibodeaux was subsequently discharged, and Rodriguez was suspended. Therefore, neither

Thibodeaux nor Rodriguez were similarly situated, as Senegal had been issued a final warning prior

to the altercation and was on probat ion at the time, and both Thibodeaux and Rodriguez were

punished for their actions.

Senegal presents no evidence that similarly situated white employees were not punished

similarly to him, and thus he fails to establish a prima facie showing of discrimination. We find that

Senegal has failed to meet his burden to show that racial animus was the reason he was terminated

from Stuller. AFFIRMED.