                                                                                                                           United States Court of Appeals
                                                                                                                                    Fifth Circuit
                                                                                                                                     F I L E D
                                 IN THE UNITED STATES COURT OF APPEALS
                                                                                                                                         June 3, 2003

                                                                                                                               Charles R. Fulbruge III
                                                    FOR THE FIFTH CIRCUIT                                                              Clerk


                                                               No. 02-51287
                                                            (Summary Calendar)




AKO-DOFFOU,

                                                                                                                            Plaintiff-Appellant,

                                                                        versus

UNIVERSITY OF TEXAS AT SAN ANTONIO,

                                                                                                                         Defendant-Appellee.



                                         Appeal from the United States District Court
                                             for the Western District of Texas
                                                        (01-CV-336)



Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

           Dr. Ako Doffou (“Dr. Doffou”) appeals from the district court’s grant of summary judgment

to his former employer, the University of Texas at San Antonio (“University of Texas”) regarding his

Title VII claim for discriminatory discharge. For the following reasons, we affirm.

                                   FACTUAL AND PROCEDURAL BACKGROUND



           *
            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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited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.
       In December 1988, Dr. Doffou, a black male born in the Ivory Coast, was hired by the

University of Texas as a visiting professor of finance. Dr. Doffou was subsequently given a tenure-

track position as an assist ant professor of finance, which the University of Texas renewed for a

second year. The University of Texas, however, refused to reappoint Dr. Doffou for a third year. As

a result, Dr. Doffou filed a Title VII suit claiming that he was not reappointed because of his race

and national origin. The University of Texas moved for summary judgment, which the district court

granted. Dr. Doffou now appeals.

                                     STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. Mowbray v. Cameron

County, Tex., 274 F.3d 269, 278 (5th Cir. 2001). Summary judgment is appropriate only when the

record indicates “no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56.

                                           DISCUSSION

       To establish a prima facie case of discriminatory discharge, a plaintiff must prove (1) that he

is a member of a protected group, (2) that he was qualified for the job, (3) that he was discharged

from the position, and (4) that he was replaced by someone outside that protected class. See Byers

v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000). If a plaintiff has established a prima

facie case of discrimination, the employer must respond with a legitimate, nondiscriminatory reason

for its decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 ( 1973). If the employer

carries this burden of production, the burden shifts back to the plaintiff, who must prove that the

legitimate reasons offered by the employer for its decision were not its true reasons, but were a

pretext for discrimination. Id. at 804.

                                                  2
       Dr. Doffou established a prima facie case of discrimination. Dr. Doffou, a black male of

African descent, is a member of a protected class. Dr. Doffou was terminated from the University of

Texas and was qualified to hold the position of assistant professor of finance. Dr. Doffou was also

replaced by non-black professors. The University of Texas, however, has proffered legitimate reasons

for terminating Dr. Doffou. The University of Texas claimed that it terminated Dr. Doffou because:

1) he made inappropriate threats and accusations to his colleagues; 2) a large number of grade

grievances were filed by students in his finance course; 3) he sent inappropriate e-mails to students;

and 4) he refused to accept his teaching load.1

       After reviewing the record, we are persuaded that Dr. Doffou has not put forth adequate

evidence demonstrating that the reasons articulated by the University of Texas are pretexts for

discrimination.2 Although Dr. Doffou offers explanations for his behavior, his explanations do not

“create a fact issue as to whether each of the employer’s stated reasons was what actually motivated

the employer.” Vadie v. Missisippi State Univ., 218 F.3d 365, 373 n. 23 (5th Cir. 2000). For

example, although Dr. Doffou attempts to explain the reasons behind his behavior, he does not prove

that the behavior complained of by the University of Texas did not occur. Moreover, Dr. Doffou’s

assertion that his status as a black male of African descent was a determinative factor in the


       1
        The University of Texas’s reliance on the e-mail Dr. Doffou sent to the University of New
Orleans should not serve as a basis for his termination. The district court correctly found that Dr.
Doffou presented sufficient facts to create a fact issue as to whether this e-mail actually motivated
the University of Texas’s decision to fire him.
       2
         Dr. Doffou unpersuasively cites to Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d
334 (5t h Cir. 1999) in support of his argument that the totality of the facts demonstrate that the
University of Texas’s actions were motivated by his national origin and race. As the University of
Texas points out, Casarez involved a case where the plaintiff adduced evidence demonstrating that
the reasons given for his termination by his employer were false. Id. at 338. In this case, Dr. Doffou
has not proven that the University of Texas’s non-discriminatory reasons were false.

                                                  3
University of Texas’s decision to terminate him is unpersuasive. Dr. Doffou’s affidavit, based

primarily on hearsay and his own opinion, does not “create a reasonable inference that [race and

national origin] was a determinative factor in the actions of which [he] complains.” Id; see also

Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (noting that hearsay evidence and other evidence

excludable at trial is not competent summary judgment evidence).

       Furthermore, the “same-actor” inference counsels against a finding of pretext. Guy Bailey

(“Bailey), University of Texas provost and vice-president of academic affairs, both recommended that

Dr. Doffou be hired and fired. In Brown v. CSC Logic, Inc., this Court held that an inference against

a finding of pretext is present where the same actor is responsible for the decision to both hire and

fire the complaining employee. 82 F.3d 651, 658 (5th Cir. 1996). Dr. Doffou’s argues that the same-

actor inference is inapplicable because Bailey merely “rubber-stamped” the recommendations of his

subordinates who harbored discriminatory animus toward Dr. Doffou. Dr. Doffou’s argument fails

because he did not put forth       sufficient evidence demonstrating that Bailey’s subordinates

discriminated against him because of his race.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to the

University of Texas.

       AFFIRMED.




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