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Click here for the full text of this decision FACTS:Antonio Abarca began working for the Metropolitan Transit Authority in Houston in 1992. Abarca said the nature of his employment began to change when a new foreman was assigned. Victor Kizzine was an African-American, and Abarca felt Kizzine harassed Hispanic employees like himself. As a result of this perceived bias, Abarca filed a grievance with the union. A month later, Kizzine claimed he found Abarca asleep on a bus parked in one of Metro’s facilities. Abarca and one other man denied that Abarca had been sleeping. Nonetheless, Abarca was to be terminated in accordance with Metro employment policy. After being notified of his impending discharge, Abarca filed another grievance with the union, this one complaining of his termination. The grievance committee determined there was insufficient evidence to support Kizzine’s charge that Abarca was sleeping on the job. The committee recommended Abarca be reinstated and compensated with full back pay, seniority and benefits. As part of Abarca’s return to work, Metro required him to sign a reinstatement agreement. Abarca did not sign the agreement because he was uncomfortable with some of the terms, but the union did sign it. Because Abarca did not sign the agreement within 36 hours, Metro notified him that it was rescinding the reinstatement offer. Abarca then sued in state court for violations of 28 U.S.C. 1983 and Title VII for discrimination and retaliation based on national origin. The case was removed to federal district court, and the district court granted Metro’s motion for summary judgment and entered a take-nothing judgment against Abarca. HOLDING:Affirmed. The court applies the burden-shifting framework for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The court finds the real dispute to be over whether Abarca satisfied the fourth prong of the test: whether he was treated differently from others in similarly situated positions. Metro presented evidence that, while not all reinstated employees are required to sign reinstatement agreements, such agreements were required in approximately one-half of the reinstatements negotiated between Metro and the union. There is also undisputed deposition testimony from the union president that there was nothing out of the ordinary with respect to the terms of Abarca’s particular reinstatement agreement. Plus, the court adds, Abarca failed to identify any employee with whom he was similarly situated, but who was treated more favorably. As to the fact that Abarca had only 36 hours in which to sign the agreement, the court finds evidence that the union, as the exclusive representative of all bargaining members at Metro (including Abarca), was responsible for obtaining the signature of the member in addition to the signatures provided by Metro and the union representative. Moreover, Metro officials were willing to give Abarca a few extra days, but Abarca did not take advantage of the offer. The court finds this offer was adequate to afford Abarca the opportunity to address any problems he may have had with the agreement’s terms. OPINION:Per curiam; Reavley, Higginbotham and DeMoss, JJ.

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