                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       May 18, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-10608
                        _______________________


                        POK SEONG KWONG; ET AL,

                                                               Plaintiffs,

         POK SEONG KWONG; AN YUAN, also known as Andy Yuan,

                                                Plaintiffs - Appellants,

                                  versus

                     AMERICAN FLOOD RESEARCH, INC.

                                                    Defendant - Appellee.


            Appeal from the United States District Court
                 For the Northern District of Texas
                           3:02-CV-2189-R


Before REAVLEY, JONES and GARZA, Circuit Judges.

PER CURIAM:*

           Pok Seong Kwong and An Yuan appeal the district court’s

summary judgment against their claims alleging race, national

origin, and religious discrimination and retaliation in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq..    For the reasons set forth below, we AFFIRM the district

court.


     *
            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opinion should not be published and is not precedent except under the limited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.

                                     1
                 Pok Seong Kwong (“Kwong”), of Malaysian-Chinese descent,

and   An    Yuan     (“Yuan”),      of   Chinese    descent,    worked    in   the   IT

Department at American Flood Research, Inc. (“AFR”), a company that

provides customer-requested flood zone certifications.                      Together,

Kwong      and    Yuan     were    responsible     for   the   online    “production”

computer         systems    that    processed    computer-assisted        flood   zone

certification requests.             On Thursday, November 15, 2001, Kwong and

Yuan submitted a letter to AFR’s President complaining of repeated

discrimination against them on the basis of their race, national

origin, and religion, and demanding $180,000 each as compensation.

Later that day, AFR discovered problems with the automated mapping

system; flood zone requests for certain areas of the country were

failing to be processed. Further, AFR discovered that the outbound

fax server had slowed to a standstill. Subsequent investigation of

AFR’s computer systems failure indicated that the failures were the

result of harmful programs installed on the computers.

                 The following day, Friday, November 16, Yuan and Kwong

arrived at work.           Shortly after arriving, however, Yuan went home

sick.      Kwong later met Yuan at Yuan’s home, and the two of them

went to lunch together.             While at lunch, the two of them discussed

the ongoing problems with AFR’s computer systems.                  Neither of them

returned to work that day; instead, following lunch, they went to

the mall where they played video games and drank coffee.                          That

evening, they went to a restaurant for food and drinks.



                                            2
            AFR terminated Kwong on the evening of that day by

placing an open letter on his door.                     The company delivered a

termination    letter     to    Yuan’s       home   the    next    day,    Saturday,

November 17, 2001.

            Kwong   and   Yuan    filed      a    two-count     Complaint    in   the

district court after filing a formal charge of discrimination and

retaliation   with   the       Equal   Employment         Opportunity     Commission

(“EEOC”).    On April 16, 2004, the district court rendered summary

judgment against the plaintiffs.                 The court held that Kwong and

Yuan failed to present evidence that would establish a prima facie

case of discrimination. It also held that, although Kwong and Yuan

sufficiently established a prima facie case of retaliation, they

failed to present sufficient evidence that would indicate that

AFR’s proffered explanations for dismissal were pretextual.                    Kwong

and Yuan appeal.

                               Standard of Review

            We review a summary judgment de novo and are bound by the

same standards as those employed by the district court. See Chaplin

v. NationsCredit Corp., 307 F.3d 368, 371 (5th Cir. 2002). Namely,

summary   judgment   is    appropriate           only   where     “‘the   pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ when viewed in the light

most favorable to the non-movant, ‘show that there is no genuine

issue as to any material fact.’”              TIG Ins. Co. v. Sedgwick James,



                                         3
276 F.3d 754, 759 (5th Cir. 2002) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505 (1986)).                   This

court will    not   consider    evidence    or    arguments   that    were    not

presented to the district court for its consideration in ruling on

the motion.   Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191

(5th Cir. 1996).

                               Discrimination

          To establish a prima facie case of discrimination based

on race or national origin, a plaintiff must usually show that

(1) he suffered an adverse employment action; (2) he was qualified

for the position; (3) he was within the protected class at the time

of the decision; and (4) the person selected as replacement was not

within the protected class.        Rios v. Rossotti, 252 F.3d 375, 378

(5th Cir. 2001).

          Kwong and Yuan presented no evidence to the district

court that    would    establish   that    they    were   qualified    for    the

position or that they were replaced by individuals not within the

protected class.      In their brief before this court, Kwong and Yuan

now raise a variety of reasons why the trial court erred and as

evidence to support their argument, point to materials that were

not before the district court.        The appellants have not provided

grounds for reversing the district court’s judgment.            See Ellison,

85 F.3d at 191.

                                Retaliation



                                     4
           A plaintiff establishes a prima facie case of retaliation

by showing: (1) that he engaged in activity protected by Title VII

or the ADEA; (2) that an adverse employment action occurred; and

(3) that there was a causal connection between the participation in

the   protected    activity      and    the    adverse           employment    decision.

Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992).

           Kwong    and   Yuan    argue       that        they    were   terminated     in

retaliation for their letter to AFR alleging racial discrimination

and demanding      $180,000   each.           The    district       court     agreed   and

determined that Kwong and Yuan had established a prima facie case

of retaliation, commenting that close timing between an employee’s

protected activity and an adverse action against him may provide

the required causal connection.           See Evans v. City of Houston, 246

F.3d 344, 354 (5th Cir. 2001).            As an affirmative defense to the

prima facie case of retaliation, AFR provided evidence that it

terminated    Kwong   and   Yuan       for:         (1)    abandoning       their   jobs;

(2)   intentionally    causing     the    computer          mapping      problems;     and

(3) violating several provisions of AFR’s Policies and Procedures

Manual.1   Kwong and Yuan admitted that they left work early without

notifying their supervisor.            To make a showing of pretext suffi-

cient to submit their case to a jury, Kwong and Yuan “must put


      1
            Among its reasons for terminating Kwong and Yuan, AFR specifically
contends that they violated section XI of the Policies and Procedures Manual
which authorizes immediate termination of employees who, among other things,
refuse to help out on special assignments, refuse to obey a supervisor’s
instructions pertaining to work, and leave work before the end of the work day
without authorization.

                                         5
forward evidence rebutting each of the nondiscriminatory reasons

the employer articulates.”       Wallace v. Methodist Hosp. System, 271

F.3d   212,    220   (5th   Cir.2001)       (emphasis   added   and   citations

omitted).      Kwong and Yuan failed to present evidence raising a

genuine fact issue of pretext as to each of the non-discriminatory

reasons offered by AFR.        Thus, the trial court properly granted

AFR’s motion for summary judgment on the allegation of retaliation.

              For the foregoing reasons, the district court’s summary

judgment order is AFFIRMED.

              AFFIRMED.




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