IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 99-11333 Summary Calendar _______________

CHARLES E. BIRDOW, Plaintiff-Appellant, VERSUS WILLIAM HENDERSON, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant-Appellee.

_________________________ Appeal from the United States District Court for the Northern District of Texas (3:97-CV-1715-P) _________________________ May 5, 2000

Before SMITH, BARKSDALE, and 1978 and was Manager of Distribution PARKER, Circuit Judges. Operations (“MDO”) at the Dallas Bulk Mail Center (“DBMC”). In January 1995, postal JERRY E. SMITH, Circuit Judge:* inspectors began investigating allegations of Charles Birdow appeals an adverse sexual harassment at DBMC, followed by an summary judgment denying his race investigation by USPS Labor Relations. discrimination claim. Finding no genuine issue Birdow received a notice of proposed removal of material fact as to pretext, we affirm. for improper conduct (sexual harassment and employee favoritism) and unsatisfactory job I. performance and was terminated based on the Birdow, a black male, began working for charges of improper conduct. the United States Postal Service (“USPS”) in Three female employees accused Birdow of sexual harassment, and six supervisors alleged * that he favored his employee-girlfriend in a Pursuant to 5TH CIR. R. 47.5, the court has manner that disrupted postal operations. determined that this opinion should not be Birdow denied t he allegations and, after published and is not precedent except under the exhausting administrative remedies, sued for limited circumstances set forth in 5TH CIR. R. race discrimination in violation of title VII.

47.5.4.

The court granted summary judgment, position with a person who is not a member of concluding that Birdow had failed to establish the protected group.” Vaughn v. Edel, 918 a prima facie case of racial discrimination and F.2d 517, 521 (5th Cir. 1990). Where the to present evidence that the USPS’s fourth factor is not applicable, as where the articulated non-discriminatory reason for discharged employee is not replaced, the discharge was pretextual. plaintiff instead may show that a similarly situated employee who is not of his protected II. class was not discharged. See id. We articulated the analysis for title VII discrimination cases in Mayberry v. Vought The USPS acknowledges that Birdow has Aircraft Co., 55 F.3d 1086, 1089-90 (5th Cir. satisfied the first three elements but claims he 1995) (internal quotation marks, footnotes, has failed to establish the fourth. Birdow and citations omitted): contends that he has established the fourth factor both with his deposition testimony that The plaintiff must establish a prima facie he was replaced by a white male and with case that the defendant made an evidence that several similarly situated white employment decision that was motivated management employees were not disciplined. by a protected factor. Once established, Although the USPS and the district court the defendant bears the burden of focus on the latter assertion, there is no producing evidence that its employment evidence contradicting Birdow’s deposition decision was based on a legitimate testimony that he was replaced by a white nondiscriminatory reason. The burden male. then shifts back to the plaintiff to prove that the defendant’s proffered reasons The USPS instead focuses on whether the were a pretext for discrimination. But, replacement was permanent or temporary. if the defendant has offered a legitimate While it is difficult to understand the relevance nondiscriminatory reason for its action, of that distinction, we need not decide whether the presumption of discrimination Birdow’s evidence satisfied his prima facie derived from the plaintiff’s prima facie burden, because summary judgment was case simply drops out of the picture, and appropriate based on his failure to raise a the ultimate question is discrimination genuine issue of material fact as to pretext.1 vel non.

Because this case arises on summary 1 The parties fail to clarify the confusing state judgment, Birdow need only raise a genuine of the record regarding Birdow’s replacement. issue of material fact regarding pretext. Birdow has consistently asserted, beginning with his first amended complaint, that he was replaced In a disparate treatment discharge case, the by a white employee. In its answer, the USPS plaintiff must first prove that he was qualified admitted that Birdow was replaced by a white for the position and was discharged under employee. The USPS later sought summary circumstances giving rise to an inference of judgment, however, on the ground that Birdow had unlawful discrimination. See Texas Dep’t of presented no such evidence, seemingly in conflict Community Affairs v. Burdine, 450 U.S. 248, with Birdow’s deposition testimony.

253 (1981). This circuit follows McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 The district court seems to have overlooked this issue. We need not decide it, because even (1973), in articulating the following generally assuming, arguendo, that Birdow made a prima applicable four-part test: The plaintiff may facie case, he failed to raise a genuine issue of prove a prima facie case of discrimination by material fact regarding pretext. In this regard, we showing that “(1) he is a member of a note the Court’s language in United States Postal protected group; (2) he was qualified for the Serv. Bd. of Governors v. Aikens, 460 U.S. 711, job that he held; (3) he was discharged; and 715 (1983), that “[w]here the defendant has done (4) after his discharge, his employer filled the (continued...)

III. pretextual by alleging that white managers The USPS produced evidence of a who engaged in conduct similar to his were legitimate nondiscriminatory reason for the not discharged. At the time of his removal, discharge, namely evidence of sexual there were six MDO’s working at DBMC, harassment and employee favoritism. Three four blacks and two whites. Two of the blacks female employees accused Birdow of sexual were not disciplined, nor were the two whites. harassment. Birdow is not aware of any preferential treatment received by one of the whites but Ontrecia Harrison received a gift from claims that the other, Robert Deal, was Birdow that she returned. Harrison claimed similarly situated in that Deal had dated that Birdow attempted to transfer her to a less subordinates, eventually marrying one of them, desirable position shortly thereafter. Cheryl and allegedly had worked to align his wife’s Thomas complained that Birdow had asked days off with his own. Birdow does not claim her out on a date on multiple occasions and that Deal had any sexual harassment that she was given an unfavorable evaluation allegations leveled against him. and placed on restricted sick leave after rejecting these advances. Bettye Jo Birdow also claims that Gary Gale, a white Washington complained that Birdow had Supervisor of Distribution Operations attempted to kiss and fondle her on multiple (“SDO”), was similarly situated and treated occasions. W a s h in g t o n m a d e more favorably. The SDO position is the level contemporaneous complaints to two of supervision directly below MDO. Birdow’s supervisors and alleged that she was used less knowledge of Gale’s alleged wrongdoing often as an acting supervisor after rejecting consists of a rumor that Gale had whispered Birdow’s advances. The testimony of other sexual innuendoes to a mail handler. In fact, employees corroborated key elements of these after an anonymous call reported that Gale claims. was involved in a consensual relationship with a subordinate and was padding her time card, Six DBMC supervisors reported that he was placed on administrative leave but was Birdow used his position to advantage his reinstated when the investigation found no girlfriend, mail handler Felicia Abu. Multiple evidence to substantiate the allegation. supervisors alleged that when after-tour overtime was called for Abu’s entire shift, Birdow also claims that SDO Ron Birdow would release Abu, causing problems Townsend sexually harassed an employee with staffing and morale. There also were named Sandra Beavers, but Birdow has no allegations that Birdow spent an inordinate evidence to back up this allegation and does amount of time visiting with Abu while she not know whether Townsend was disciplined. was on duty, so much so that one supervisor Lastly, Birdow introduced a statement by had to request that Birdow leave Abu alone so Alvin Cole, a supervisor at DBMC, that she could work. numerous management personnel dated employees.

Birdow attempts to demonstrate that the USPS’s proffered nondiscriminatory reason is Because none of these employees was involved in nearly identical circumstances, Birdow fails to demonstrate that any comparable employee was treated more (...continued) favorably, and thus he fails to prove that the everything that would be required of him if the plaintiff had properly made out a prima facie case, proffered reason for discharge is false. See whether the plaintiff really did so is no longer Burdine, 450 U.S. at 256; Little v. Republic relevant. The district court has before it all the Refining Co., 924 F.2d 93, 97 (5th Cir. 1991). evidence it needs to decide whether the defendant Whereas Birdow sexually harassed several intentionally discriminated against the plaintiff” subordinates and extended job benefits to his (internal quotation marks omitted). girlfriend in a manner that disrupted employer operations, the only proffered employee of equal seniority, Robert Deal, had no sexual harassment charges brought against him.

SDO’s are of lesser seniority, and Birdow has no knowledge or evidence of any wrongdoing by Gale or Townsend.

AFFIRMED.