Barrera v. Worldwide Flight Services, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 22, 2007
Charles R. Fulbruge III
Clerk
No. 06-20539
Summary Calendar
ALONSO BARRERA,
Plaintiff-Appellant,
versus
WORLDWIDE FLIGHT SERVICES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:03-CV-05718
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff Alonso Barrera appeals the dismissal of his
termination claim under Title VII on summary judgment. Finding
no error, we affirm.
I.
Worldwide hired Alonso Barrera as a bus driver in September
1997 and promoted him to jet bridge technician in 1999.
Worldwide terminated Barrera’s employment in 2000, after he
allegedly violated the company’s policy prohibiting racially
hostile conduct by painting the letters “KKK” on a company
*
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that this opinion should not be published and is not precedent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.
No. 04-10595
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workbench. Barrera challenged his termination, and an arbitrator
reinstated him in February 2001, subject to the condition that
Worldwide could terminate his employment immediately were he to
violate the policy again.
On June 18, 2003, Worldwide again terminated Barrera for
violating the policy, this time for directing a racial epithet at
an African-American co-worker and threatening to assault the co-
worker. Barrera filed a grievance and his termination was
upheld. He filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) and received a right-to-
sue letter.
He then filed suit in district court, claiming that
Worldwide had violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, by subjecting him to a hostile work
environment and then terminating him because he is Hispanic and
in retaliation for engaging in a protected activity. Worldwide
moved for summary judgment on both claims. The district court
granted summary judgment for Worldwide and dismissed Barrera’s
claim of wrongful termination, but denied summary judgment on the
claim for harassment based on national origin. Barrera’s claim
for hostile work environment was tried to a jury who found in
favor of Worldwide. Barrera appeals, claiming error related to
the district court’s grant of summary judgment in favor of
Worldwide on his termination claims.
No. 04-10595
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II.
The district court’s Memorandum and Order concluded that
Barrera failed to establish the elements of a prima facie case of
retaliation. Barrera first argues that the district court erred
in concluding that there were no genuine issues of fact as to his
claim that his national origin was a motivating factor in
Worldwide’s decision to terminate his employment. Barrera did
not raise this claim below. Rather, as stated by the district
court, Barrera’s termination claim is that he was terminated
because he was an outspoken member of the union and Worldwide had
not wanted to retain him as an employee after the “KKK” incident
in 2000.
Assuming that Barrera established a prima facie case of
retaliation for engaging in a protected activity, Worldwide
stated a legitimate non-retaliatory reason for his termination
and Barrera has failed to sustain his burden of showing that
Worldwide’s reason was pretextual. Worldwide produced evidence
that it terminated Barrera for racially harassing and
intimidating behavior, in violation of Worldwide’s policies and
the terms of the 2001 arbitration agreement. At that point, the
inference of discrimination introduced by a prima facie case
disappears. Evans v. City of Houston, 246 F.3d 344, 354 (5th
Cir. 2001). Barrera cannot survive summary judgment merely
because he disagrees with the stated reasons. Id. at 355. The
issue is whether Worldwide’s stated reason for terminating
No. 04-10595
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Barrera is the real reason he was terminated. Id. Barrera has
presented no evidence to counter that after an investigation,
Worldwide believed that Barrera had used a racial epithet against
another employee and issued threats to that employee, and that
Barrera provoked the confrontation that led to his termination.
Accordingly, we find no error in the judgment of the district
court dismissing Barrera’s termination claim on summary judgment.
III.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.