Nzeda v. Shell Oil Co. , 228 F. App'x 375 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-20718
Summary Calendar
BLAISE NZEDA,
Plaintiff-Appellant,
versus
SHELL OIL COMPANY AND SHELL INTERNATIONAL EXPLORATION AND
PRODUCTION INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-04-4606
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff Blaise Nzeda, a black male from Cameroon, Africa,
appeals the district court’s grant of summary judgment in favor of
his employer, Shell Oil Company and Shell International Exploration
and Production, Inc. (hereinafter “Shell”), on his claims of: (1)
race and national origin discrimination; and (2) workers’
compensation retaliation. We review the grant of summary judgment
de novo. Walker v. Thompson, 214 F.3d 615, 624 (5th Cir. 2000).
For the following reasons, we affirm.
*
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this opinion should not be published and is not precedent except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. 06-20718
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As to Nzeda’s race and national origin claim, we agree with
the district court that Nzeda has failed to make a prima facie case
of discrimination, the first step for a plaintiff claiming
discrimination. Estate of Martineau v. ARCO Chem., 203 F.3d 904,
912 (5th Cir. 2000). Nzeda has established that he was a member of
a protected class, was qualified for the position that he held, and
suffered an adverse employment action, the first three elements of
a prima facie case. Id. Defendants do not contend otherwise.
However, Nzeda has failed to prove the fourth element, that: (1) he
was replaced by someone who was not a member of a protected group;
or (2) similarly situated individuals outside the protected class
were treated more favorably than him. Id. He alleges, in
conclusory fashion, that those outside of his protected class were
treated more favorably, because, he asserts, the defendants failed
to investigate those employees’ use of company cellular phones.
Nevertheless, Nzeda proffers no evidence to support these
allegations. By contrast, Shell’s evidence indicates that the
company did, in fact, investigate other employees, yet found that
none used company-issued phones for personal calls to the extent to
which Nzeda did. Furthermore, Nzeda additionally submitted
questionable reimbursement requests.
As to Nzeda’s workers’ compensation retaliation claim, filed
under Texas Labor Code Section 451.001, we agree with the district
court that he has failed to establish a prima facie case. To do
so, he must show that: (1) he, in good faith, filed a workers’
No. 06-20718
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compensation claim; (2) he suffered an adverse employment action;
and (3) there is a causal link between the two, i.e., that the
filing of the claim was a “determining factor” in his discharge.
Burfield v. Brown, Moore & Flint, 51 F.3d 589-90 (5th Cir. 1995).
Undisputably, Nzeda, in good faith, filed a workers’ compensation
claim and suffered an adverse employment action, his termination.
However, he cannot prove a causal link between the two. Nzeda
offers no direct evidence of retaliation, yet circumstantial
evidence may suffice. Continental Coffee Products Co. V. Cazarez,
937 S.W.2d 444, 451 (Tex. 1996). In assessing a plaintiff’s
circumstantial evidence, we consider: (1) the knowledge of the
workers’ compensation claim by those who decided to terminate; (2)
whether there was an expression of a negative attitude towards the
employee’s injured condition; (3) whether the employer failed to
adhere to established company policies; (4) whether there was any
discriminatory treatment in comparison to similarly situated
employees; and (5) any evidence that the stated reason for the
discharge was false. Id. Though in the instant case the
decisionmaker knew of Nzeda’s workers’ compensation claim, there is
no evidence of any of the other five factors. Nzeda relies solely
upon his own assertions and beliefs, which are insufficient to
support the finding of causal link between Nzeda’s workers’
compensation claim and his termination.
For the foregoing reasons, we affirm.
No. 06-20718
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