UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60366 Summary Calendar Lower Court No. 1:99-CV-571

KENNETH SMITH,

Plaintiff-Appellant,

v.

INTERNATIONAL PAPER COMPANY, BRIAN HUTSON and EARLIE THOMAS,

Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Mississippi

October 10, 2001

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

Kenneth Smith appeals the district court’s summary

judgment order dismissing his Title VII and negligence claims.

Smith concedes that he failed to comply with company procedures for

shutdown of the machine on which he worked to enable routine

maintenance. Smith’s failure to follow company procedures created

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. a dangerous environment for his co-workers. Additionally, it is

undisputed that Smith’s performance record contained several

disciplinary actions in lieu of discharge, and that Smith was

warned that future violations of company procedures would result in

termination. These facts constitute a legitimate, non-

discriminatory reason for Smith’s termination, and Smith has

offered no evidence of pretext, nor has he proved that his black

coworkers were in a similar position to him when they received less

harsh punishment. Therefore, Smith’s Title VII claim fails. See

Sreeram v. Louisiana State Univ. Med. Center-Shreveport,

(5th. Cir. 1999) (citing McDonnell Douglas Corp. v. Green,

(1973).

To establish his additional claim of negligence against

the coworkers, Smith must offer evidence establishing duty, breach,

causation and damages. Palmer v. Anderson Infirmary Benevolent

Assoc.,

(Miss. 1995). Smith has failed to

present evidence establishing a duty owed to him by Thomas and

Hutson . Even if Thomas and Hutson owed Smith a duty, Smith has

failed to prove that there was a breach of this duty which caused

Smith’s termination. The district court appropriately dismissed

Smith’s negligence claims.

We AFFIRM the summary judgment order entered by the

district court for the reasons stated in its comprehensive opinion.

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