MEMORANDUM OPINION and ORDER

JOHN McBRYDE, United States District Judge

Came on for consideration the motion of defendant, Xerox Corporation, for summary judgment. The court, having considered the motion, the response of plaintiff, Donald R. Jefferson, the summary judgment evidence, the record, and applicable authorities, finds that the motion should be granted.

I. Plaintiff's Claims

On October 17, 2001, plaintiff filed his original petition in the 67th Judicial District Court of Tarrant County, Texas. By notice of removal filed October 19, 2001, the action was brought before this court. Plaintiff alleges that he was wrongfully terminated by defendant due to his race, color, and national origin, and that he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 ("Title VII"), and by virtue of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 ("ADEA"), and in violation of the Texas Commission on Human Rights Act, TEX. LAB. CODE §§ 21.001-.556 (Vernon 1996 Supp. 2001).

II. Grounds of the Motion

Defendant urges four grounds in support of its motion. First, plaintiff cannot establish a prima facie case of discrimination because he voluntarily left his job. Second, even if plaintiff did not voluntarily resign, he cannot establish a prima facie case of discrimination; nor can he overcome defendant's reason for letting him go. Third, plaintiff cannot establish any claim of retaliation. And, fourth, plaintiff is not entitled to recover any lost wages as he made no effort to mitigate his damages.

III. Applicable Summary Judgment Principles

A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).

The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597.

IV. Undisputed Evidence

The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:

Plaintiff is an African-American male of darker color. He is fifty-four years old. He began work for defendant in 1970 as a "stockhandler," receiving, pulling, and shipping parts, supplies, and other materials. In approximately 1974, plaintiff became a "storekeeper," performing the same duties as a stockhandler, but additionally supervising other stockhandlers. In April 1996, plaintiff went to work as a storekeeper at defendant's Fort Worth facility. Otis McGriff ("McGriff") was plaintiff's supervisor. McGriff is also an African-American male and is one year older than plaintiff. McGriff has known plaintiff personally and professionally since high school and supervised him for approximately fifteen years. For the entire time that plaintiff was employed by defendant, John Phelps ("Phelps"), a Caucasian male, was manager of the facilities where plaintiff worked. Phelps is about plaintiff's age. McGriff reported to Phelps and was Phelps's subordinate.

In 1984, plaintiff filed a charge with the EEOC, alleging that defendant had discriminated against him on the basis of his race. He complained that, in July 1984, he complained to management about racist jokes being told by a white employee, but no action was taken. He also complained that a crew he had supervised was reduced from eight employees to one employee. In 1996, plaintiff filed a second charge against defendant, once again asserting that he had been discriminated against on the basis of his race. After an employee of the EEOC visited defendant's Fort Worth facility to investigate the charge, defendant showed its employees at the facility a video about race in the workplace. The EEOC did not issue its notice of right to sue letter pertaining to the 1996 charge until November 12, 1999.

On or about Friday, October 8, 1999, while plaintiff was working as a storekeeper, a customer arrived to pick up a will-call order that had been placed at least one hour earlier. Plaintiff was taking a break at the time, even though the customer's order had not been filled. Phelps located plaintiff and instructed him to fill the order immediately. The following Monday, October 11, 1999, Phelps asked McGriff to discuss the matter with plaintiff. McGriff did so and also pointed out that another will-call order that had been time-stamped at least an hour earlier that very day had not yet been filled. Plaintiff responded that he did not believe that the order had been in his basket for very long. Plaintiff demanded a meeting with the union steward, Rick Mize ("Mize"), Phelps, and McGriff. The meeting took place shortly after McGriff's conversation with plaintiff. After the meeting, plaintiff left work. He took with him a box of personal belongings, then returned to hand McGriff his security access card to the facility. There is a dispute as to whether plaintiff announced then that he was quitting his job. The following day or the day thereafter, plaintiff returned to the Fort Worth facility. He was told that defendant had accepted his resignation and that he should leave the premises.

Plaintiff ultimately filed a grievance with his union over the issue of his resignation. After the union declined to pursue the matter to arbitration, plaintiff filed an unfair labor practice charge with the National Labor Relations Board ("NLRB"), alleging that the union failed its duty of fair representation by not pursuing plaintiff's grievance through the arbitration process. On May 25, 2000, the NLRB dismissed plaintiff's charge, noting that at least two employees stated that they were told by plaintiff that he had quit his job.

Plaintiff was replaced by Joel Williams, who was also African-American and approximately ten years older than plaintiff. In October 1999, all nineteen of defendant's warehouse workers were over the age of forty.

Plaintiff has been self-employed since leaving defendant. He does landscaping and general hauling, site clean-up, and masonry contracting. Plaintiff considered other jobs, but was afraid he would be required to pass a physical, so he did not apply for other employment. He did not believe that he could pass a physical at his age and with his high blood pressure.

V. Law Applied to the Facts

A. Title VII

To establish a prima facie case of discrimination under Title VII, plaintiff must show that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) he was replaced by someone outside of his protected class or similarly situated individuals outside his protected class were treated more favorably. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998). There is no dispute that plaintiff was a member of a protected class and that he was qualified for his position. The parties do dispute the existence of the third and fourth elements.

Defendant argues that plaintiff has not met the third element of the test because he resigned his employment. Plaintiff, on the other hand, maintains that he did not quit his job. Although the weight of the evidence on this issue favors defendant, plaintiff has raised a genuine fact issue as to whether he voluntarily left defendant's employ or was terminated. Thus, for the sake of discussion, the court assumes that plaintiff has suffered an adverse employment action.

With regard to the fourth element, plaintiff concedes that he was not replaced by someone outside his protected class. He relies on cases that say that it is not essential for plaintiff to show that he was replaced by someone outside his protected class to establish a prima facie case. See, e.g., Williams v. Trader Publ'g Co., 218 F.3d 481, 485 (5th Cir. 2000); Nieto v. L H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997). Those cases are not helpful in explaining how the burden is otherwise met. They simply state that just because a plaintiff is replaced by someone within his class does not negate the possibility that the plaintiff's discharge was motivated by discrimination. Williams, 218 F.3d at 485; Nieto, 108 F.3d 624, n. 7. Moreover, while replacement by a minority is not outcome determinative, it is certainly material to the question of discriminatory intent. Nieto, 108 F.3d at 624. And, none of the cases plaintiff cites holds that plaintiff does not otherwise have to show that similarly situated individuals outside his protective class were treated more favorably.

Instead of focusing on the fourth element of his prima facie case, plaintiff wants to jump ahead by arguing that defendant's reason for terminating him was false. Plaintiff's Brief at 17. But, defendant's reason for terminating plaintiff simply does not matter unless plaintiff has first established his prima facie case. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Plaintiff's own subjective belief that defendant discriminated against him is insufficient to support a prima facie case. Aikens v. Banana Republic, Inc., 877 F. Supp. 1031, 1038 (S.D. Tex. 1995).

Even if plaintiff could jump ahead as he insists, he has not shown anything more than that there is a genuine dispute as to whether he resigned or was fired. He has not shown that defendant did not have a reasonable basis for believing that he had resigned. Plaintiff admits that he took a box of personal belongings with him when he walked out and that he returned to give McGriff his security access card. A reasonable juror could but conclude that plaintiff had resigned. (And, that is ignoring the evidence that plaintiff told several people that he had quit.)

That plaintiff's supervisor is the same race and age as plaintiff raises an inference that there was no discrimination. Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). That McGriff mistakenly believed plaintiff had to give written notice of resignation does not raise an inference of discrimination. Nor does the fact that plaintiff had previously filed EEOC charges against defendant. Those charges were remote in time. See Clark County School District v. Breeden, 532 U.S. 268, 273 (2001). Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001), cert. denied, 122 S.Ct. 2587 (2002). Moreover, plaintiff has not shown that but for the filing of the charges (or either of them) he would not have lost his job. McMillan v. Rust Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983). There is simply no evidence that those charges had any bearing on defendant's decision.

B. ADEA

The first three elements of a prima facie case under the ADEA are identical to the test under Title VII. To establish the fourth element, plaintiff must show that he was replaced by someone substantially younger or was otherwise discharged because of his age. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-13 (1996). Plaintiff really does not dispute that there are no such facts. Instead, plaintiff merely argues that his age claim is not procedurally barred. Plaintiff's Brief at 21. His argument is not convincing. plaintiff did not raise until August 2001, an allegation that his termination was based on age. The ADEA requires employees to bring charges of discrimination within three hundred days of the alleged discriminatory conduct. 29 U.S.C. § 626(d)(2). Plaintiff cannot rely on his timely filed race discrimination charge because there is no reason to believe that investigation of such charge would have encompassed a claim for age discrimination. See Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995); Clemmer v. Enron Corp., 882 F. Supp. 606, 610-11 (S.D. Tex. 1995). Thus, his ADEA claim is untimely.

C. Mitigation

The court need not address the issue of mitigation since plaintiff has not established that there is a genuine fact issue for trial.

D. Conduct of Plaintiff's Attorneys

Because plaintiff's attorneys previously filed a motion to withdraw, which was ultimately denied after hearing, the court finds it appropriate to comment on their representation of plaintiff in case plaintiff gets the idea that he was not adequately represented with regard to the motion for summary judgment. plaintiff's attorneys stated in open court on July 22, 2002, that they would vigorously defend the motion and the court is satisfied that they have done so. The response reflects that a great deal of work went into it and that counsel made the best presentation they could based on the facts confronting them. Although there is no doubt that plaintiff truly believes he was wronged by defendant, the evidence does not support his claims that defendant discriminated or retaliated against him.

VI. Order

For the reasons discussed herein,

The court ORDERS that defendant's motion for summary judgment be, and is hereby, GRANTED; that plaintiff take nothing on his claims against defendant; and that such claims be, and are hereby, DISMISSED WITH PREJUDICE.