IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10668

Summary Calendar

WILLIE J MCKINNEY,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF TRANSPORTATION

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas (99-CV-1009)

December 6, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Willie McKinney appeals the district court's grant of summary

judgment in favor of the defendant, the Texas Department of

Transportation ("TxDOT"), on his claim of Title VII employment

discrimination. For the following reasons, we AFFIRM.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

McKinney was an at-will employee of TxDOT from 1986 until his

termination (the subject of this lawsuit) in 1998. He worked as a

maintenance technician in TxDOT's Abilene District; and at the time

of his termination he was employed in Jones County. In September,

1998, TxDOT terminated McKinney after an incident in which he

appeared to threaten the Interim District Engineer of the Abilene

District, Lauren Garduno. Prior to this event, McKinney had been

placed on probation following two violations of TxDOT policy.

First, in May, 1998, TxDOT placed McKinney on probation for

one year after McKinney allegedly became aggressive towards a gas

station attendant during a fuel purchase for TxDOT. The attendant,

on his own initiative, wrote TxDOT to complain about McKinney's

unruly behavior. TxDOT conducted an investigation into the events

and determined that McKinney had violated TxDOT policy. McKinney

was thus placed on probation for one year, in part because of a

previous record of insubordination.

In September, 1998, just before his termination, McKinney was

asked to provide a home telephone number to TxDOT, so that he could

be contacted in an emergency. McKinney initially refused to

provide a telephone number, despite a direct request by his

supervisor to do so. This insubordination prompted Garduno to

extend McKinney's probationary period approximately 4 months, so

that it would end in September, 1999.

2 On September 23, 1998, Garduno met with McKinney to inform him

of the extension of his probation. During this meeting, McKinney

uttered something to the effect of "You will not prosper by messing

with me."1 Garduno, and several other employees present at the

meeting concluded that McKinney had threatened Garduno, based upon

both this statement and his body language and prior conduct.

Garduno, pursuant to TxDOT's policies on violence in the workplace,

decided that McKinney should be terminated. McKinney was

terminated on September 28, 2001.

McKinney brought this suit, alleging that he was terminated

because of his race (he is African-American) in violation of Title

VII of the Civil Rights Act of 1964.2 The district court granted

summary judgment to TxDOT on the Title VII claim, and McKinney now

appeals.

II

A

We review the district court's grant of summary judgment de

novo.3 We apply the same standards as the district court, and view

all disputed facts "in the light most favorable to the nonmoving

1 The parties dispute the precise words used by McKinney. McKinney claims that he quoted the Bible by stating "No weapon formed against me shall prosper." Isiah 54:17 (New International Version). 2 42 U.S.C. § 2000e et seq. 3 Starkman v. Evans,

(5th Cir. 1999).

3 party ...."4 We will grant summary judgment where "there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law."5 The nonmoving party,

in order to survive summary judgment, must "go beyond the pleadings

and by [their] own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial."6

In the absence of direct evidence of discriminatory intent,7

we analyze the plaintiff's claim under the burden-shifting

framework established by the Supreme Court in McDonnell-Douglas

Corp. v. Green.8 Under McDonnell-Douglas, a plaintiff must first

establish a prima facie case of discrimination. This shifts the

burden of production to the employer to provide a legitimate, non-

discriminatory reason for its actions.9 "If the plaintiff can show

that the proffered justification is mere pretext, however, that

showing, coupled with the prima facie case, will be sufficient in

4 Duffy v. Leading Edge Prods.,

(5th Cir. 1995). 5 Fed R. Civ. P. 56(c). 6 Celotex Corp. v. Catrett,

(1986) (internal quotation omitted). 7 McKinney does offer what he alleges is direct evidence, but we reject it under our stray remarks jurisprudence. See infra n.15. 8

(1973). 9 Shackelford v. Deloitte & Touche, LLP,

(5th Cir. 1999).

4 most cases to survive summary judgment."10 "This court has

consistently held that an employee's 'subjective belief of

discrimination' alone is not sufficient to warrant judicial

relief."11

B

In this case, TxDOT has conceded that McKinney established his

prima facie case. TxDOT argues, and the district court agreed,

that McKinney failed to produce substantial evidence that TxDOT's

proffered justification for McKinney's termination: his

disciplinary problems and threatening actions toward Garduno, was

a mere pretext for racial discrimination.

McKinney's response consists of two arguments. First, he

offers differing accounts of all three relevant incidents (the

confrontation with the gas station attendant, the refusal to

provide a home telephone number, and the threat against Garduno).

Second, he complains that racial epithets were employed at the

workplace, which shows that the disciplinary justification offered

by TxDOT is pretext.

With respect to his alternate factual accounts of events,

McKinney has not rebutted the legitimate nondiscriminatory

10 Auguster v. Vermilion Parish Sch. Bd.,

(5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods., Inc.,

(2000)). 11 Id. at 402-03.

5 justification for his termination by providing these alternate

versions.

First, McKinney's assertion that the gas station attendant

"became ugly" with him, as opposed to the confrontation's being

initiated by McKinney, does not speak to the motive of Garduno in

imposing probation upon McKinney for the incident. McKinney cannot

show pretext by claiming "innocence" without offering evidence that

TxDOT knew or had reason to know that he did not merit punishment

for the gas station incident but punished him anyway---for only

this would provide evidence that the stated reason for his

probation, and his ultimate termination, was pretextual. McKinney

has offered no such evidence, and the facts of the incident

(involving an unsolicited complaint from a private citizen), do not

lend itself to any invidious motive on the part of TxDOT in

imposing probation.

Second, McKinney does not attempt to rebut evidence that he

directly refused to obey a supervisor when he was asked to provide

a telephone number. Instead, McKinney notes that he did eventually

provide such a number. However, the disciplinary action in this

case (an extension of probation) was imposed for insubordination,

not for failing to provide the telephone number.12

12 See Chaney v. New Orleans Public Facility Mgmt., Inc.,

, 167-68 (5th Cir. 1999) ("The failure of a subordinate to follow the direct order of a supervisor is a legitimate nondiscriminatory reason for discharging that employee.").

6 Finally, McKinney claims that he did not threaten Garduno, but

instead prayed by quoting the Bible. As with the other alternate

versions of the facts, McKinney has not provided substantial

evidence that the legitimate non-discriminatory justification (that

Garduno and three eyewitnesses interpreted McKinney's actions as

threatening) offered by TxDOT lacks credibility.

"In determining whether summary judgment was appropriate, we

consider 'the strength of the plaintiff's prima facie case, the

probative value of the proof that the employer's explanation is

false, and any evidence that supports the employer's case and that

properly may be considered on a motion for judgment as a matter of

law.'"13 "[McKinney's] evidence to rebut the non-discriminatory

reasons offered by [TxDOT] is not so persuasive so as to support an

inference that the real reason was discrimination."14 As a result,

summary judgment is appropriate unless McKinney's evidence that

racially derogatory remarks were used at the workplace provides

either sufficient evidence of pretext or direct evidence of

discriminatory intent. We now turn to those questions.

13 Rios v. Rossotti,

(5th Cir. 2001) (quoting Reeves,

).

14 Crawford v. Formosa Plastics Corp.,

(5th Cir. 2000) (quoting Rubinstein v. Administrators of the Tulane Educ. Fund,

(5th Cir. 2000)).

7 C

McKinney also alleges that the general use of racial epithets

in the workplace and the inaction of a supervisor in light of such

activity provide evidence of pretext. However, McKinney has

adduced no evidence that anyone even remotely connected with the

decision to terminate or discipline him ever made such remarks.

Even after Reeves we have held that such remarks do not create a

jury issue as to pretext unless the speaker is someone "principally

responsible" for the employee's termination or has leverage over

someone responsible for that decision.15

McKinney argues that since Gary Teichelman was present when

some of these remarks were allegedly made, and he was involved in

the decision to terminate McKinney, that this is sufficient to

impute those remarks to Teichelman and provide evidence of pretext.

McKinney has presented no evidence that Teichelman had supervisory

authority over the individuals making the racially-derogatory

remarks and therefore the authority to take action.

Consequentially, Tiechelman's inaction in the face of these remarks

cannot provide evidence of pretext.

15 Id. at 379-80. McKinney also apparently uses these remarks as evidence of direct discrimination. Where, as here, there is not substantial evidence of pretext, we have held that it is appropriate to analyze such stray remarks as direct evidence of discrimination under Brown v. CSC Logic, Inc.,

(5th Cir. 1996). Under Brown such remarks, in order to provide direct evidence, must (among other things) be "made by an individual with authority over the employment decision at issue ...."

; Krystek v. Univ. of S. Miss.,

(5th Cir. 1999). Again, McKinney does not allege that the remarks were made by decision-makers. Therefore they cannot provide direct evidence of discrimination sufficient to withstand summary judgment.

8 Finally, McKinney's reliance on Evans v. Bishop16 is misplaced,

because in that case the individual who uttered the derogatory

remark was, in fact, an actual decision-maker.17

III

McKinney, for the first time on appeal, raises claims of

retaliation and hostile work environment. Since these claims were

not raised in the district court, they cannot be entertained now.18

McKinney has conflated our standard for determining whether a Title

VII plaintiff's claims, properly raised in the district court, were

within the scope of the EEOC charge, such that the district court

had jurisdiction to hear them.19 This rule is not implicated when

there has been a complete failure to raise such a claim in the

district court in the first instance.

AFFIRMED.

16

(5th Cir. 2000)

17 Id. at 588. 18 Jenkins v. State of La., Through Dep't of Corrections,

(5th Cir. 1989). 19 See, e.g., Thomas v. Texas Dep't of Criminal Justice,

(5th Cir. 2000) ("The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.").

9