UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50373 Summary Calendar

DAVID J. WILLIAMS,

Plaintiff-Appellant,

versus

OFFICE DEPOT, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Texas (SA-99-CV-1188)

October 9, 2002

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

David J. Williams appeals the summary judgment awarded Office

Depot, Inc., on his two Title VII claims: employment

discrimination and retaliatory discharge. Summary judgments are

reviewed de novo. E.g., Hunt v. Rapides Healthcare System, LLC,

(5th Cir. 2001). No authority need be cited for such judgment being proper if there are no material fact issues and

the non-movant is entitled to a judgment as a matter of law.

A prima facie case for race discrimination requires plaintiff

prove: (1) he is a member of a protected group; (2) he was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. qualified for his former job; (3) he was discharged; and (4) after

his discharge, his former position was filled by someone not within

the protected class. E.g., Singh v. Shoney’s, Inc.,

(5th Cir. 1995). If plaintiff establishes the prima facie

case, defendant must articulate a legitimate non-discriminatory

reason for discharge.

. If defendant does so, plaintiff

must show, by a preponderance of evidence, that the reason is

pretextual.

Williams maintains erroneously that the Supreme Court held in

Reeves v. Sanderson Plumbing Products, Inc.,

(2000),

that, to defeat a motion for summary judgment, plaintiffs are only

required to show by some evidence that the defendant’s reason for

discharge was false. The Reeves Court noted: “[T]here will be

instances where, although the plaintiff has established a prima

facie case and set forth sufficient evidence to reject the

defendant’s explanation, no rational factfinder could conclude that

the action was discriminatory”.

. Vadie v. Mississippi

State Univ.,

(5th Cir. 2000), elaborated on Reeves,

stating that a plaintiff can avoid summary judgment only if the

evidence, taken as a whole: “(1) creates a fact issue as to whether

each of the employer's stated reasons was what actually motivated

the employer and (2) creates a reasonable inference that [the

alleged discriminatory conduct] was a determinative factor in the

actions of which plaintiff complains.”

at 373 n. 23 (emphasis

added; quoting Rhodes v. Guiberson Oil Tools,

(5th Cir. 1996)).

2 Williams lied on his employment application concerning his

criminal history. Given the investigation of Williams’ possible

theft of Office Depot goods, Office Depot chose to terminate him

for lying on the application. We conclude, as did the district

court: even if Williams proved a prima facie case, and viewed in

the light most favoring Williams, the record fails to create

material fact issues surrounding Office Depot’s reason for

termination. The record also fails to show that race was a

determinative factor in Office Depot’s decision.

A prima facie case for retaliatory discharge requires Williams

to show: (1) his participation in activity protected by Title VII;

(2) an adverse employment action; and (3) a causal connection

between his participation in the protected activity and the adverse

employment action. E.g., Holt v. JTM Industries, Inc.,

(5th Cir. 1996). Williams fails to do so. Even if the

first two prongs are met, he fails to show that, “but for” his

filing an EEOC charge against Office Depot, he would not have been

terminated. See, e.g., Scrivner v. Socorro Independent School

District,

(5th Cir. 1999).

AFFIRMED

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