MEMORANDUM ORDER

A. JOE FISH, Chief Judge, District

Before the court is the motion of the defendant United Parcel Service of America, Inc. ("UPS") for summary judgment. For the following reasons, the motion is granted.

I. BACKGROUND

UPS is an international package delivery company. Declaration of Robert Cowan ("Cowan Declaration") ¶ 2, located in Appendix to Defendant's Brief in Support of Motion for Summary Judgment ("UPS Appendix") as Exhibit 1. In his petition, Taylor averred that UPS was a Texas corporation. See Petition ¶ 2. In its notice of removal, however, UPS maintained that it is a Delaware corporation with its principal place of business in Georgia. Notice of Removal at 2 n. 1.

UPS hired Taylor in 1979, and he became a UPS driver in 1984. Oral Deposition of Joe. J. Taylor, III ("Taylor Deposition") at 16, located in UPS Appendix, as Exhibit B2. UPS package car drivers retrieve parcels from customers to be delivered elsewhere, and they also deliver UPS parcels to those customers. Cowan Declaration ¶ 4. International shipping is costly. Id. For example, one international parcel shipped via UPS is equivalent to approximately 43 commercial ground packages. Id. In an effort to avoid service errors, UPS trains its drivers in the proper handling of international parcels. Id. All UPS drivers utilize a handheld computer known as a DIAD, or Delivery Information Acquisition Device, to track parcel retrievals and deliveries. Id. ¶ 5.

Taylor was a member of Local 767 of the International Brotherhood of Teamsters ("IBT"). Id. ¶ 6. As an IBT member, the terms of Taylor's employment were governed by the National Master United Parcel Service Agreement and Southern Supplemental Agreement ("Agreement"). Id.; see also National Master United Parcel Service Agreement and Southern Supplemental Agreement ("Agreement"), located in UPS Appendix, as Exhibit 1A. The Agreement contained the following provision.

ARTICLE 52 — DISCHARGE OR SUSPENSION

(A) The Employer shall not discharge nor suspend any employee without just cause, but . . . shall give at least one (1) warning notice of a complaint against such employee to the employee, in writing, and a copy of the same to the Local Union[.] . . .

The warning notice . . . shall be given to the employee with a copy to the Union within ten (10) working days . . . or within ten (10) working days of knowledge of said complaint and shall not remain in effect for a period of more than nine (9) months from the date of said warning notice. . . .

Agreement at 174-75.

Article 51 of the Agreement ("Article 51") outlines the mandatory grievance and arbitration procedures applicable to a UPS employee. Cowan Declaration ¶ 8; see also Agreement at 171-74. Generally, a UPS employee who is to be discharged for poor performance receives an "intent to terminate." Cowan Declaration ¶ 7. The IBT and the employee must file a grievance within ten days following receipt of an intent to terminate notification. Id. ¶ 8. An intent to terminate gives an employee the right to work while his grievance is pending. Id. ¶ 7. Under Article 51, if the grievance is not resolved at the local level, the matter is submitted to the Southern Region Area Parcel Grievance Committee ("SRAPGC"), a committee comprised of IBT and UPS representatives. Id. ¶ 8. If the SRAPGC is deadlocked, the matter is sent to arbitration. Id.

Between October 2000 and April 2001, Taylor was responsible for seven international shipping holds. Id. ¶ 9. An international hold is an international package which does not contain enough information for the package to clear customs or a package on which an invoice is missing. Oral Deposition of Robert Craig Cowan ("Cowan Deposition"), located in Plaintiff's Summary Judgment Appendix ("Plaintiff's Appendix"), at 13, 32-33.

In a series of letters to Taylor in 2000 and 2001, UPS division manager Bob Cowan ("Cowan") cautioned Taylor about Taylor's unsatisfactory job performance. First, in a letter dated November 9, 2000, Cowan wrote Taylor the following:

This letter is to inform you of your failure to follow your supervisor's instructions. On November 7, 2000, you failed to follow proper methods regarding the pickup of international packages. As a result, the package was held and a service failure occurred.

This service disconnect give [sic] a poor reflection of the service we provide. Any future disregard for your supervisor's instructions will result in further disciplinary action, up to and including discharge.

Letter From Cowan to Taylor dated November 9, 2000, located in UPS Appendix at 49.

In a letter dated December 20, 2000, Cowan again wrote Taylor and stated the following:

On November 7, 2000, you received a warning letter due to your failure to follow proper methods regarding the pickup of international packages.

On December 14, 2000, you again failed to follow proper methods regarding the pickup of international packages resulting in service failures to our customer's [sic].

On December 19, 2000, a hearing was held with you and your union representative. As a result of that hearing it is the intent of United Parcel Service to suspend you for five (5) days.

Any future disregard for proper methods will result in further disciplinary action, up to and including discharge.

Letter From Cowan to Taylor dated December 20, 2000, located in UPS Appendix at 52.

On January 8, 2001, Cowan, still dissatisfied with Taylor's job performance, wrote Taylor the following:

On November 7, 2000, you failed to follow proper methods regarding the pickup of international packages which resulted in service failures to our customers. As a result of that you received a warning letter.

On December 14, 2000, you again failed to follow proper methods regarding the pickup of international packages which result in service failures to our customers. As a result, you were issued an intent to suspend.

On December 18, 2000, you were retrained on the proper methods regarding the pickup of international packages by your supervisor, Chip Aston.

However, on January 5, 2001, you again had an international hold due to failure to follow proper methods regarding the pickup of international packages resulting in service failures to our customers.

On January 8, 2001, a hearing was held with you and your union representative. As a result of that hearing it is the intent of United Parcel Service to terminate your employment.

Letter From Cowan to Taylor dated January 8, 2001, located in UPS Appendix at 53.

In a letter dated January 25, 2001, Cowan gave Taylor a chance to redeem himself when he wrote Taylor the following:

On January 25, 2001, a hearing was held. Due to the intervention of you [sic] business agent, the intent to terminate was reduced to a last and final warning. It was also agreed that you would be re-trained again, on how to properly pick up an international package. This training will take place prior to February 2, 2001.

On January 30, 2001, the agreed upon training took place. Present at that training was your union representative, your center manager, and a business development account executive. You were trained on all aspects of picking up an international package.

You have now been trained and understand how to pick up an international package. It is your responsibility to correctly pick up all international packages.

Any future disregard for proper methods will result in further disciplinary action, up to and including discharge.

Letter From Cowan to Taylor dated January 25, 2001, located in UPS Appendix at 53A.

In a letter dated March 6, 2001, Cowan informed Taylor of UPS's intent to terminate Taylor's employment in the following letter:

You received a warning letter dated November 9, 2000, for failure to follow proper methods regarding the pickup of international packages.

In a letter dated December 20, 2000, we issued an intent to suspend for five (5) days because of your failure to follow proper methods regarding the pickup of international package, you served that suspension.

We issued an intent to terminate in a letter dated January 8, 2001. Again, you had failed to follow proper methods regarding the pickup of international packages even though you had received additional training regarding these methods.

In a letter dated January 26, 2001, we reduced the intent to terminate to a last and final warning. We also agreed to retrain you regarding these methods.

The letter dated February 6, 2001, reviews the agreed upon training and the fact that the training was completed.

However, you again failed to follow proper methods on February 28, 2001, which resulted in another international service failure. On March 1, 2001, a hearing was held with you and your union representative.

As a result of that hearing, it is the intent of United Parcel Service to terminate your employment pursuant to Article 52 of the Labor Agreement.

Letter From Cowan to Taylor dated March 6, 2001, located in UPS Appendix at 58.

In a letter dated May 9, 2001, Cowan notified Taylor of an additional international hold which occurred on April 27, 2001. Letter From Cowan to Taylor dated May 9, 2001, located in UPS Appendix at 58A.

Finally, in a letter dated August 20, 2001, Cowan wrote Taylor the following:

In a letter dated December 20, 2000, we issued an intent to suspend for five (5) days because of your failure to follow proper methods regarding the pick up of International packages. You served that suspension.

Since that suspension you have had numerous International holds, even though the company re-trained you in proper International procedures.

During the week of May 16-18, 2001, the SRAPGC issued a decision of a ten (10) day suspension, which you served.

Currently, there is a case before the SRAPGC for an intent to terminate regarding your failure to follow proper methods when picking up International packages.

On August 9, 2001, you again failed to follow the training you have received regarding proper International procedures, which resulted in another International hold. A hearing was held with you and your Union representative and you were issued another intent to terminate.

Again, on August 15, 2001, you failed to follow proper International procedures, which you have been trained in, which resulted in another International hold.

Therefore, it is the intent of United Parcel Service to terminate you pursuant to Article 52 of the Labor Agreement. Any future disregard for proper methods will result in further disciplinary action, up to and including discharge.

Letter From Cowan to Taylor dated August 20, 2001, located in UPS Appendix at 59.

The decision to terminate Taylor's employment was based on "his repeated inability to comply with UPS policies relating to international packages." Cowan Declaration ¶ 10. Cowan cannot recall another employee with more international holds than Taylor in 2001 and 2002. Cowan Deposition, located in Plaintiff's Appendix at 37. The SRAPGC rejected Taylor's grievance and upheld UPS's decision to terminate his employment. Cowan Declaration ¶ 10.

Taylor maintains that he is aware of white UPS employees who were not disciplined for international holds. Affidavit of Joe Taylor, located in Plaintiffs Appendix at 67. Mike Sadler, Robert Courson, Brent Burkham ("Burkham") are all white UPS employees who received a warning letter following an international hold. Cowan Deposition, located in UPS Appendix at 37-38. An additional white UPS employee, Pete Luisi, was suspended due to an international hold. Id. at 38. The employment of these individuals was not terminated because they had no more international holds after receiving a reprimand. Id. at 39.

Caleb Hamilton Peveto ("Peveto"), a UPS business manager, supervised Taylor. Oral Deposition of Caleb Hamilton Peveto ("Peveto Deposition"), located in Plaintiff's Appendix at 47, 56. On a daily basis, Peveto is "responsible for the dispatch and delivery of approximately 3,000 delivery stops, 10,000 delivery packages, and the pickup of 1100 pickup stops and 12,000 pickup packages. . . ." Peveto Deposition at 47. According to Peveto, UPS drivers received the same treatment, regardless of race. Id. at 57.

Taylor cites the differential treatment Burkham and Burt Boatie received following their international holds, as well as a derogatory comment made by Peveto, as evidence that UPS discriminated against him. Taylor Deposition at 74-79. The derogatory comment occurred on April 3, 2001 when Peveto called Taylor a "boy." Plaintiff's Brief in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment ("Response") at 3. Taylor classifies "boy" as a "racial

comment." Id.

On March 6, 2001, Taylor filed his charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and Texas Commission on Human Rights. See Charge of Discrimination, located in UPS Appendix at 61; Response at 3. According to Taylor, "[w]hile previous intent to terminates were issued prior to the first charge of discrimination, it was the intent to terminate issued after his EEOC complaint that ultimately resulted in his termination." Response at 3 (emphasis in original).

On July 16, 2002, Taylor filed the instant suit in the 116th Judicial District Court of Dallas County, Texas. Notice of Removal ¶ 1. On November 5, 2002, Taylor amended his petition. Taylor alleged a cause of action for "race and color" discrimination and retaliation in violation of the Texas Labor Code, a codification of the Texas Commission on Human Rights Act ("TCHRA"). Petition ¶¶ 14, 15, 17-19. On November 21, 2002, UPS removed the state court action to this court on the ground of diversity jurisdiction. Notice of Removal ¶¶ 2-3.

II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponent must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, he must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponent. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is properly entered against a party if after adequate time for discovery, he fails to establish the existence of an element essential to her case and as to which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

B. Title VII Claims

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Title VII also prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a).

1. Race Discrimination

Since the record in this case contains no direct evidence of race discrimination, a three-step analysis applies. See Portis v. First National Bank of New Albany, MS, 34 F.3d 325, 328 (5th Cir. 1994); see also St. Mary's, 509 U.S. at 506-11; Burdine, 450 U.S. at 252-56; McDonnell Douglas, 411 U.S. at 802-05. In the first step, the plaintiff must establish a prima facie case of discrimination. Portis, 34 F.3d at 328 n. 7. If the plaintiff presents a prima facie case, a presumption of discrimination arises. St. Mary's, 509 U.S. at 506. At the second step, the defendant can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for the employment decision of which the plaintiff complains. Id. at 507. If the defendant satisfies this burden of production, the plaintiff's prima facie case dissolves, id., and the case proceeds to the third step of the analysis. Id. At this third stage, the burden is on the plaintiff to prove that the reasons offered by the defendant are pretexts for race discrimination. Id. at 507-08.

When the analysis has proceeded to this third step, the plaintiff — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find "that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was." Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993) (emphasis in original). Accord Moore v. Eli Lilly and Company, 802 F. Supp. 1468, 1471-74 (N.D. Tex. 1992), aff'd, 990 F.2d 812, 816 n. 24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993). See St. Mary's, 509 U.S. at 507-08.

a. Prima Facie Case

To establish a prima facie case of race discrimination, Taylor must show (1) that he was a member of a protected group, African-American; (2) that he was qualified for his position; (3) that he was dismissed or suffered an adverse employment action; and (4) that the defendant sought to replace him with a similarly qualified white employee. E.g., Ward v. Bechtel Corporation, 102 F.3d 199, 202 (5th Cir. 1997). That is, Taylor must prove that "an employee outside of his protected class received better treatment on circumstances nearly identical to his." Bowers v. Principi, 2003 WL 21554567, at *1 (5th Cir. July 3, 2003) (per curiam) (citation omitted).

The court will assume, for the purposes of this motion, however, that Taylor has established a prima facie case of race discrimination. The question then becomes whether UPS has offered a legitimate, nondiscriminatory reason for Taylor's discharge and whether Taylor can satisfy his pretext burden.

b. Nondiscriminatory Reason

UPS contends that it has established that Taylor was terminated for legitimate, non-discriminatory reasons. Defendant's Brief in Support of Motion for Summary Judgment ("Motion") at 7. To satisfy its burden of production, UPS must merely produce evidence which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action about which the plaintiff complains. See St. Mary's, 509 U.S. at 507, 509 (at this stage of analysis, credibility determinations are not warranted as burden-of-production determination necessarily precedes credibility assessment stage); see also Dailey v. Johnson Johnson Consumer Products, Inc., 850 F. Supp. 549, 553 n. 2 (N.D. Tex. 1994) ("It is important to note that whether a defendant carries [its] burden of production involves no credibility assessment, `[f]or the burden-of-production determination necessarily precedes the credibility-assessment stage.'") (emphasis in original, quoting St. Mary's, 509 U.S. at 509), affd, 99 F.3d 1136 (5th Cir. 1996) (table); Thornton v. Neiman Marcus, 850 F. Supp. 538, 543 (N.D. Tex. 1994) ("The Court may not assess the credibility of the stated reason.").

The record clearly indicates that attempts were made over a substantial period to "counsel" Taylor regarding his poor job performance. UPS has introduced evidence that termination of Taylor's employment was due to his poor job performance. Thus, UPS has produced a sufficient nondiscriminatory reason for its termination of Taylor's employment. See Wright v. Southwest Bank, 648 F.2d 266, 267 (5th Cir. 1981). Accordingly, upon review of the motion, the response, and the evidence in the record, the court concludes that UPS has carried its burden of articulating a legitimate, nondiscriminatory reason for terminating Taylor's employment.

c. Pretext Burden

When the analysis has proceeded to this third step, Taylor — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find that UPS's stated reason was not the true reason for the employment decision and that unlawful discrimination was. Bodenheimer, 5 F.3d at 957 (emphasis in original). Accord Moore, 802 F. Supp. at 1471-74; Waggoner, 987 F.2d at 1166; see St. Mary's, 509 U.S. at 515-16. To show pretext, a plaintiff must do more than negate the defendant's proffered reasons for the employment decision. See Walton v. Bisco Industries, Inc., 119 F.3d 368, 371 (5th Cir. 1997).

In Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996) (en banc), the Fifth Circuit set forth the following standard regarding proof of pretext:

[A] jury issue will be presented and a plaintiff can avoid summary judgment . . . 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 [race] was a determinative factor in the actions of which plaintiff complains. The employer, of course, will be entitled to summary judgment if the evidence taken as a whole would not allow a jury to infer that the actual reason for the discharge was discriminatory.

After reviewing Taylor's response to the UPS's motion for summary judgment, the court concludes that he has failed to raise a genuine issue of material fact that UPS's reason for discharging him is a mere pretext for race discrimination. Even if it is assumed, arguendo, that Taylor has presented a prima facie case, his claim would fail for want of evidence from which a reasonable jury could conclude that the legitimate reasons offered by UPS were pretexts for race discrimination. Taylor offers nothing to show that an impermissible racial animus motivated UPS. Absent such evidence, a verdict in favor of Taylor on his claims of race discrimination would be insupportable as a matter of law. See Swanson v. General Services Administration, 110 F.3d 1180, 1185 (5th Cir.) (reversing and rendering a jury verdict where the plaintiff offered no evidence connecting the defendant's actions to race), cert. denied, 522 U.S. 948 (1997).

Taylor's incorrectly asserts that the comment made by supports a clear inference of discrimination. Response at 2. The comment allegedly made by Peveto was that Taylor was a "boy." Id. In keeping with the summary judgment standard, the court will assume that the comment was made. Still, it does not evidence an intent to discriminate on the basis of race. The comment is — at best — no more than a "stray remark," and `"stray remarks' alone will not overcome overwhelming evidence corroborating defendant['s] non-discriminatory rationale." Sreeram v. Louisiana State University Medical Center-Shreveport, 188 F.3d 314, 320 (5th Cir. 1999); see also Brown v. CSC Logic, Inc., 82 F.3d 651, 655-56 (5th Cir. 1996); Waggoner, 987 F.2d at 1166.

The Fifth Circuit has held that such remarks may be sufficient evidence of discrimination if the comments are "1) related [to the protected class of persons of which the plaintiff is a member]; 2) proximate in time to the termination; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue." Krystek v. University of Southern Mississippi, 164 F.3d 251, 256 (5th Cir. 1999) (citations omitted). In this case, the court finds that the comment was proximate in time to Taylor's termination and was made by Peveto, who likely had authority to terminate Taylor's employment. However, the comment makes absolutely no reference to Taylor at all, much less his race. Nor does the comment make any reference to the employment decision at issue — UPS's decision to terminate Taylor's employment. Taylor has failed to demonstrate that the comment he ascribes to Peveto is evidence of pretext. This is especially so "where, as here, the evidence overwhelmingly supports defendant['s] proffered non-discriminatory rationale." Sreeram, 188 F.3d at 320 (citing Brown, 82 F.3d at 656).

In sum, the most favorable view of the evidence suggests that Taylor was an African-American who suffered adverse employment actions, not that he suffered adverse employment actions because he was an African-American. Even when viewed in a light most favorable to him, Taylor's summary judgment evidence fails to create an issue of fact that his discharge was motivated by his race. Because he will bear the burden of proof on these elements of his claim at trial, this lack of evidence is fatal. See Celotex, 477 U.S. at 322-23. Accordingly, UPS's motion for summary judgment of Taylor's race discrimination claim is granted.

2. Retaliation

As with Taylor's claims of discrete instances of race discrimination, the court applies the McDonnell Douglas/Burdine/St. Mary's burden shifting framework to Taylor's claims of retaliation. See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). To establish a prima facie case of unlawful retaliation under Title VII, Taylor must demonstrate that (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. See Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 540 (5th Cir. 1998); Sherrod, 132 F.3d at 1122 n. 8; Long, 88 F.3d at 304; Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir. 1991), cert. denied, 502 U.S. 1072 (1992). The causal connection required is cause-in-fact or "but for" causation. Jack v. Texaco Research Center, 743 F.2d 1129, 1131 (5th Cir. 1984).

Taylor relies on the same evidence for his claim that UPS retaliated against him as he did with his race discrimination claim. Taylor Deposition at 80-81.

If it is assumed arguendo that Taylor has adduced sufficient evidence to establish a prima facie case of retaliation, the court must next address UPS's proffered explanation and Taylor's ultimate proof. See, e.g., Long, 88 F.3d at 305. UPS explains Taylor's termination by pointing to his deteriorating job performance. Defendant's Reply in Support of Summary Judgment at 1-5. To avoid summary judgment, Taylor must rebut this legitimate explanation by providing evidence from which a reasonable jury could conclude that unlawful retaliation was the "cause-in-fact" of his injury. See Sherrod, 132 F.3d at 1123.

Upon review of the evidence, the court concludes that Taylor has failed to provide proof from which a reasonable jury could find that retaliation was the cause-in-fact of his discharge. Even if it is assumed arguendo that Taylor engaged in protected activity, he has submitted no evidence challenging UPS's legitimate, nondiscriminatory reason for discharging him, i.e., his poor work performance. Without such evidence showing that Taylor would not have been discharged "but-for" his complaints of discrimination, see Sherrod, 132 F.3d at 1122; Long, 88 F.3d at 305 n. 4, UPS is entitled to summary judgment on Taylor's retaliation claim.

III. CONCLUSION

For the foregoing reasons, UPS's motion for summary judgment is GRANTED.

SO ORDERED.