The opinion
Case: 22-10020 Document: 00516383724 Page: 1 Date Filed: 07/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 6, 2022
No. 22-10020
Summary Calendar Lyle W. Cayce
Clerk
Willie Ray Smith,
Plaintiff—Appellant,
versus
Summit Midstream Partners, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-1841
Before Higginbotham, Higginson, and Engelhardt, Circuit
Judges.
Per Curiam:*
Plaintiff Willie Ray Smith appeals the grant of summary judgment in
favor of Defendant Summit Midstream Partners, LLC, (“Summit”) on his
employment discrimination claims. We AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 22-10020
I.
Smith began his employment with Summit in September 2011 as a
compressor operator at the company’s compression plant. In 2014, Smith
began working as an amine operator (also referred to as a treater plant
operator) at Summit’s then-newly opened amine plant. In April 2015, Smith
expressed interest in an open position as a lead operator in the compression
plant. Johnny Gonzales, a non-Black employee at the compression plant, was
chosen over Smith for the lead operator position. On August 1, 2015, Smith
was terminated from his position at Summit. At the time of Smith’s
termination, there were two amine operators—Smith and Victor Spikes.
Eldon Garrison and Michael Christopher supervised the amine operators.
Smith was the only Black employee at the amine plant at the time of his
termination.
In December 2015, Smith filed a Charge of Discrimination with the
Equal Employment Opportunity Commission alleging race discrimination in
Summit’s failure to promote him to lead operator and in Summit’s decision
to terminate him. The EEOC issued a right-to-sue letter on May 8, 2019.
Smith filed suit against Summit in the Northern District of Texas in
August 2019. He alleged, among other claims not at issue here, that he was
passed over for the promotion to lead operator in the compression plant and
was terminated in part because of his race. In December 2020, Summit filed
a motion for summary judgment, which was initially denied by the district
court. The case was then transferred by consent of the parties to a magistrate
judge, who sua sponte reconsidered the order denying the motion and
granted summary judgment in favor of Summit. The magistrate judge
concluded that Smith failed to establish a prima facie case of race
discrimination on both his wrongful termination and his failure-to-promote
claims. Smith timely appealed.
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II.
We review a grant of summary judgment de novo, applying the same
standards as the district court. Thompson v. Microsoft Corp., 2 F.4th 460, 466
(5th Cir. 2021). We will affirm the grant of summary judgment if “there is
no genuine dispute as to any material fact and the movant [was] entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We construe all
facts and inferences in the light most favorable to the non-moving party when
reviewing a summary judgment.” Burrell v. Dr. Pepper/Seven Up Bottling
Group, Inc., 482 F.3d 408, 411 (5th Cir. 2007).
III.
Under the burden-shifting framework applicable to employment
discrimination claims, a plaintiff must first establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To establish a prima facie case, a plaintiff must show that he
(1) is a member of a protected group; (2) was qualified for the
position at issue; (3) was discharged or suffered some adverse
employment action by the employer; and (4) was replaced by
someone outside his protected group or was treated less
favorably than other similarly situated employees outside the
protected group.
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). The burden
then shifts to the employer “to articulate some legitimate, nondiscriminatory
reason for the” adverse action. McDonnell Douglas, 411 U.S. at 802; McCoy,
492 F.3d at 557. If the employer meets this burden of production, the plaintiff
must show that each proffered reason is actually a pretext for the
discriminatory purpose. McCoy, 492 F.3d at 557.
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A.
The court concluded that Smith failed to establish a prima facie case
of race discrimination on his termination claim. In particular, the court found
that Smith did not “identify proper comparators – individuals of a different
race than him ‘under nearly identical circumstances’ who were treated more
favorably.” Thus, the court concluded that Smith failed to meet his burden
to show that he “was replaced by someone outside his protected group or
was treated less favorably than other similarly situated employees outside the
protected group.” McCoy, 492 F.3d at 556. On appeal, Smith focuses on the
issue of pretext, which the court did not reach, and only indirectly addresses
the court’s conclusion that Smith failed to identify a proper comparator. 1
Regardless, the court’s conclusion that Smith failed to establish the
fourth prong of the prima facie case was correct. We have held that two
employees are “similarly situated” only if they “held the same job or
responsibilities, shared the same supervisor or had their employment status
determined by the same person, and [had] essentially comparable violation
histories.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
The only other employee Smith proffered who meets the first two criteria is
Spikes, the other amine operator, who was also supervised by Garrison and
Christopher. However, Spikes, a white male, and Smith did not have
“essentially comparable violation histories.” Id. Smith received counseling
about his job performance on multiple occasions. Though Smith disputes
one of these instances, he admitted in his deposition testimony that he had
been counseled about job performance previously. There was no evidence
1
Smith does not argue in his initial brief on appeal that the court erred by
concluding that Smith failed to show he was “replaced by someone outside his protected
group.” McCoy, 492 F.3d at 556. Therefore, any challenge to that conclusion is deemed
abandoned. Edwards v. Johnson, 209 F.3d 772, 775 n.1 (5th Cir. 2000).
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that Spikes had ever been disciplined or counseled about job performance,
and Christopher wrote in a declaration that Spikes called Christopher
multiple times per week to notify him that he was changing filters in the
amine plant (one of the amine operators’ duties), whereas Smith only called
him for the same reason two to three times over the course of several months.
Here, the “‘difference between the plaintiff's conduct and that of those
alleged to be similarly situated accounts for the difference in treatment
received from the employer,’” and, thus, “the employees are not similarly
situated for the purposes of an employment discrimination analysis.” Id.
B.
On Smith’s failure-to-promote claim, the court also concluded that
Smith failed to establish a prima facie case of race discrimination. To
establish a prima facie case of discrimination on a failure-to-promote claim,
a plaintiff must show that (1) he is a member of a protected
class; (2) he sought and was qualified for a position for which
applicants were being sought; (3) he was rejected for the
position; and (4) the employer either (a) hired a person outside
of the plaintiff's protected class, or (b) continued to seek
applicants with the plaintiff’s qualifications.
Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 406 (5th Cir. 2021). The court
found that Smith failed to establish a genuine dispute of material fact on the
second requirement, because he did not formally apply for the lead operator
position and because he was not qualified for the position due to lack of
mechanical experience. Smith argues that there was no formal application
process and, again, only indirectly addresses the court’s conclusion that he
was not qualified for the position.
Even if Smith established a prima facie case of discrimination, he has
not shown that Summit’s proffered reason for hiring Johnny Gonzales, who
was outside Smith’s protected class, was pretextual. McCoy, 492 F.3d at 557.
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To prove the proffered reason was a pretext for racial discrimination, Smith
could show either that “he is ‘clearly better qualified’ than” Gonzales or that
Summit’s “proffered explanation is false or ‘unworthy of credence.’”
Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 412 (5th
Cir. 2007) (citations omitted).
Smith has not shown he was “clearly better qualified” than Gonzales.
Id. In a declaration, Summit’s Senior Vice President, Operations, Dakota
Lee, stated that Gonzales was hired over Smith based on “his performance,
his work ethic, mechanical aptitude, willingness to make simple repairs, and
leadership skills” and the fact that “Gonzales also already worked in the
compression plant at the time Summit offered him the lead position.”
Smith’s responds that he was either as or more qualified than Gonzales for
the position based on Smith’s significant experience with Summit and more
generally as a compressor operator. However, Smith does not address
Gonzales’s qualifications or make a comparison between Gonzales’s
qualifications and his own. Therefore, he cannot show that he was “clearly
better qualified” than Gonzales, and that “the qualifications are so widely
disparate that no reasonable employer would have made the same decision.”
Martinez v. Tex. Workforce Comm’n-Civil Rights Div., 775 F.3d 685, 687-88
(5th Cir. 2014) (quoting Moss v. BMC Software, Inc., 610 F.3d 917, 923 (5th
Cir. 2010)). Aside from his own qualifications for the position, Smith makes
no other argument on appeal that Summit’s proffered reason for hiring
Gonzales was pretextual. Therefore, Smith has also failed to show that
Summit’s “proffered explanation is false or ‘unworthy of credence.’”
Burrell, 482 F.3d at 412.
On his wrongful termination claim, Smith failed to establish a prima
facie case of race discrimination, and on his failure-to-promote claim, Smith
failed to prove that Summit’s proffered non-discriminatory reason for hiring
a person outside Smith’s protected class was pretextual.
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Therefore, the judgment is AFFIRMED.
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