UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-60135 Summary Calendar

EDWARD LAVERNE KELLEY,

Plaintiff - Appellant,

VERSUS

LOCKHEED MARTIN CORPORATION and LOCAL 2386, THE INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, A.F.L.-C.I.O,

Defendants - Appellees.

Appeal from the United States District Court For the Southern District of Mississippi (4:00-CV-178-LN) October 2, 2002

Before JOLLY, PARKER, and CLEMENT, Circuit Judges. * PER CURIAM:

Edward Laverne Kelley appeals the district court’s grant of

judgment as a matter of law to Defendant Lockheed Martin

Corporation (“Lockheed Martin”) in his Title VII suit and the grant

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 of summary judgment to Defendant International Association of

Machinists and Aerospace Workers (“Union”) in his

suit. We affirm on both issues.

Kelley asserts that Lockheed Martin defamed him under

Mississippi state law and violated Title VII by discriminating

against him on the basis of race. He is black and contends that

his absences were treated differently from, and more harshly than,

absences of a white co-employee. Lockheed Martin counters that

Kelley was fired because of his pattern of unexcused absences, for

which he received counseling. Kelley, who is not a Union member,

also claims that the Union violated § 1981 by providing him with

less representation on his grievance against Lockheed Martin under

a collective bargaining agreement than it provided to similarly-

situated whites.

The district court granted summary judgment to the Union on

the basis that Kelley offered no evidence supporting a claim of a

§ 1981 violation. The court also granted in part and denied in

part Lockheed Martin’s motion for summary judgment. The case

proceeded to trial against Lockheed Martin only, on the Title VII

claim only. Lockheed Martin moved for judgment as a matter of law

under FED. R. CIV. P. 50 at the close of Kelley’s case-in-chief,

which the court denied. The jury was unable to reach a verdict and

the court declared a mistrial. Lockheed Martin renewed its

judgment as a matter of law motion, which the court then granted.

Kelley moved for reconsideration or for a new trial, which the

2 court denied. He now appeals both the district court’s grant of

judgment as a matter of law in his case against Lockheed Martin and

the court’s grant of summary judgment in his case against the

Union.

We review de novo a grant of judgment as a matter of law.

Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs,

Inc.,

(5th Cir. 2002). Judgment as a matter of

law is appropriate if “there is no legally sufficient evidentiary

basis for a reasonable party to find for [a] party on [an] issue.”

Id.; FED. R. CIV. P. 50(a). Reviewing all of the evidence in the

record, a “court must draw all reasonable inferences in favor of

the nonmoving party, and it may not make credibility determinations

or weigh the evidence.”

(quoting Reeves v.

Sanderson Plumbing Prods., Inc.,

(2000)).

We also review de novo a grant of summary judgment. Sreeram

v. Louisiana State University Medical Center - Shreveport,

(5th Cir. 1999). We will reverse the district court’s

ruling only if we determine that the pleadings and evidence

establish that there is a genuine issue of material fact. Id.; FED

R. CIV. P. 56(c).

The elements of the claims in Title VII and § 1981 cases are

the same. Pratt v. City of Houston, Tex.,

, 606 n.1

(5thCir. 2001). That is, to show a prima facie case of race

discrimination, the plaintiff must show that (1) he was a member of

3 a protected class, (2) he was qualified for the position, (3) he

was terminated or subject to an adverse employment action, and (4)

he was treated more harshly than a person not in the protected

class.

n.2 (citing McDonnell Douglas Corp. v. Green,

(1973)); Sreeram,

. The plaintiff must

show that the employer gave preferential treatment to another

employee under nearly identical circumstances; that is, that the

misconduct for which the plaintiff was discharged was nearly

identical to that engaged in by other employees. Okoye v. The

Univ. of Tex. Houston Health Science Ctr.,

(5th

Cir. 2001)(citations omitted). Once the prima facie case is

established, a presumption of discrimination exists and the burden

shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the challenged employment action. Pratt,

.

Kelley, who is black and thus in a protected class, claimed

that Lockheed Martin violated Title VII by treating him more

harshly for his absences, and eventually terminating his

employment, than it did a white employee by the name of Carlton

Floyd. He characterized Floyd as being in a nearly identical

position, or similarly situated, to himself. On that basis, the

district court initially ruled that Kelley had made out a prima

facie case and denied Lockheed Martin’s motion for summary judgment

on the Title VII claim because a genuine issue of material fact

4 existed. At trial, however, the admissible evidence presented by

both parties yielded a different picture. Over the pertinent two-

year period, Kelley had been absent, arrived late, or departed

early some 49 times. He had been counseled on his absenteeism, had

received written notice of warnings, had been subject to

discipline, and was aware that he was in jeopardy of being fired if

he incurred one more unauthorized absence. He pointed to Lockheed

Martin’s retention of Floyd following a series of absences to

illustrate his claim of discriminatory treatment. Floyd, however,

was absent less than half the number of times as Kelley in the same

period: 24 total. He had not been given the benefit of counseling,

as Kelley had been. He had been made subject to a three-day

disciplinary layoff, as Kelley had been, but which was rescinded

when Floyd was able to point out a date error on his record that

prematurely marked him for discipline. There was no such error on

Kelley’s record. As the district court determined, Floyd was not

in a nearly identical position or similarly situated to Kelley.

Kelley’s testimony regarding friction between himself and several

co-workers and supervisors, of various races, does not aid him

because he cannot show any connection to discriminatory

disciplinary action taken against him. Furthermore, Kelley’s

testimony pointing out other black employees who received favorable

treatment over him undermined his own argument that Lockheed Martin

acted discriminatorily based on race. Kelley adduced no evidence

at trial and nothing new on appeal in support of his Title VII

5 claim. As presented, he cannot show that Lockheed Martin

intentionally discriminated against him on the basis of race and

there is no remaining genuine issue of material fact.

Kelley also contended to the district court that the Union had

treated his request for representation differently from that

afforded Floyd. He asserted that the Union had provided more

favorable review assistance to Floyd than that afforded him, and

that the Union voted to deny his request for arbitration. The

district court ruled that he had provided no evidence in support of

his claim, and granted summary judgment to the Union. As just

discussed, Floyd was not similarly situated to Kelley, and Kelley

cannot show race-based discrimination on that basis. In

deposition, Kelley complained that the Union’s representative, Ida

Delk, did not represent him to his satisfaction. He also stated,

however, that regarding treatment afforded to a white employee, he

had “no idea how they was represented” and could not say that such

representation was any different from that afforded him.

Furthermore, Kelley admitted that he knew of no other employee

grievance taken to arbitration by the Union. He has provided no

evidence to show a § 1981 violation on the Union’s part.

For the reasons stated herein, we AFFIRM both rulings of the

district court.

6