           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 30, 2008

                                     No. 08-10344                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


PROBODH ARORA

                                                  Plaintiff - Appellant
v.

STARWOOD HOTELS & RESORTS WORLDWIDE, INC.

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  3:06-CV-1553


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Probodh Arora appeals the district court’s grant of summary judgment in
his action against Starwood Hotels for illegal discharge due to his race, national
origin, age, and retaliation. We affirm.
       Arora began working for Starwood Hotels in 1990 as a banquet manager.
He was promoted to the position of Director of Banquets and Outlets in 2004.
In 2005, Starwood discharged Arora, along with three other assistant banquet


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10344

managers, following an investigation into alleged misconduct that occurred in
the administration of the company’s 2005 annual employment satisfaction
survey.
      Arora sued Starwood alleging his discharge was in violation of Title VII
and the Texas Commission on Human Rights Act.1 Title VII and the TCHRA
make it unlawful for an employer “to fail or refuse to hire or to discharge any
individual . . . because of such individual’s race, color, religion, sex, or national
origin.”2 Arora is originally from India, is a naturalized United States citizen,
and, at the time of his discharge, was 47 years of age.
                                               I
      Summary judgment is proper when the “pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.”3 When making its determination, the court must draw all
justifiable inferences in favor of the nonmovant.4 Our review of the district
court’s grant of summary judgment is de novo.5




      1
          42 U.S.C. § 2000e; Texas Commission on Human Rights Act, TEX. LAB. CODE § 21.001.
      2
          42 U.S.C. § 2000e-2(a).
      3
          FED. R. CIV. P. 56(c).
      4
          Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).
      5
          Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005).

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                                         No. 08-10344

       Under the McDonnell Douglas6 framework, Arora is required to make a
prima facie case of discrimination by showing: (1) he is within a protected class,
(2) he was qualified for the position, (3) he suffered an adverse employment
decision, and (4) he was replaced by someone outside the protected class or
treated less favorably than similarly situated employees outside the protected
class.7
       The district court ruled that Arora failed to establish a prima facie case
because he did not raise a material fact issue as to the fourth element; whether
he was replaced by someone outside the protected class or treated less favorably
than similarly situated employees outside the protected class.
       Starwood replaced Arora with Ian McKee. The only evidence raised to
show McKee was outside the protected class was unsupported statements in
Arora’s briefs, and Arora’s own declaration and deposition testimony. The
summary judgment record did not include any other basis for determining
McKee’s race or age. Arora admits his allegations are not based on first-hand
knowledge.8
       Unsubstantiated hearsay evidence that would not be admissible at trial
does not suffice to raise a genuine issue of material fact.9 Arora’s failure to


       6
          McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The framework requires a
plaintiff to first create a presumption of discrimination by making out a prima facie case of
discrimination. The burden of production then shifts to the defendant to establish legitimate
non-discriminatory reasons for its actions. The plaintiff then bears the burden of persuading
the trier of fact by a preponderance of the evidence that the employer intentionally
discriminated against the plaintiff because of the plaintiff’s protected status. Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003).
       7
           Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003).
       8
        Arora’s testimony includes: “[A]s I understand it, [McKee] was thirty years of age
when hired,” and “He was in his 30s. I don’t know. I never met him.”
       9
        See Clary v. Computer Assocs. Intern, Inc., 109 F.3d 765, 765 (5th Cir. 1997) (“Clary’s
attempt to establish that he was subjected to disparate treatment discrimination by offering
evidence of a pattern or practice of discrimination cannot succeed because his own deposition

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                                       No. 08-10344

produce competent summary judgment evidence regarding the race or age of his
replacement, when evidence of this nature was readily ascertainable through
discovery, precludes him from establishing an issue of fact as to whether he was
replaced by someone outside the protected class.
       We also agree with the district court that there is no genuine issue of
material fact regarding whether Arora was treated less favorably than similarly
situated employees outside the protected class. Arora was discharged along with
two other banquet department employees implicated in the survey incident. One
was 26 years old and Caucasian, the other 34 years old and Indian.
Additionally, two other banquet department employees were investigated but
not terminated, one of whom was Indian and one of whom was the same age as
Arora. This evidence indicates Arora was treated on par with similarly situated
employees that were younger and Caucasian.
       Arora failed to raise a genuine issue of material fact regarding the fourth
element of a prima facie discrimination claim. Accordingly, the district court did
not err by granting Starwood’s motion for summary judgment on those claims.10
                                              II
       The district court also did not err in granting Starwood’s summary
judgment motion regarding Arora’s retaliation claim. Both Title VII and the
Texas Commission on Human Rights Act prohibit discrimination against



refutes personal knowledge of the ages of other allegedly terminated employees.”); Pritchard
v. S. Co., Servs., 92 F.3d 1130, 1135 (11th Cir. 1996) (“Pritchard cannot use inadmissable
hearsay to defeat summary judgment when that hearsay will not be reducible to admissible
form at trial. There is nothing to indicate that Pritchard’s statements (which were based on
the statements of unknown co-workers) will lead to admissible evidence.”) (internal citation
omitted).
       10
          Appellant attempts to raise an issue of spoilation to bolster his prima facie case.
Spoilation was not raised at the district court and cannot be raised for the first time here.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.2005) (“It is well settled in this
Circuit that the scope of appellate review on a summary judgment order is limited to matters
presented to the district court.”).

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                                           No. 08-10344

employees who have opposed an unlawful employment practice, or made a
charge, testified, assisted, or participated in an investigation, proceeding, or
hearing under the employment practices statute.11
         Arora failed to establish a prima facie case of retaliation. He raised no
genuine issue of material fact as to whether he engaged in an activity protected
by Title VII.12 Arora alleges he told supervisors that an employee was drinking
at the bar without paying and that two managers were engaging in sexually
provocative behavior. While ungainly, the complained about behavior does not
involve an employee being treated unfairly due to race or sex, thus the
complaints are not protected activity.13
         For the foregoing reasons, the district court’s grant of summary judgment
is AFFIRMED.




         11
              42 U.S.C. § 2000e-3(a); TEX. LAB. CODE § 21.055.
         12
           See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004) (“To
present a prima facie case of retaliation under either Title VII or § 1981, a plaintiff must show
that: (1) he engaged in an activity protected by Title VII; (2) he was subjected to an adverse
employment action; and (3) a causal link exists between the protected activity and the adverse
employment action.”).
         13
              See Harris-Childs v. Medco Health Solutions, Inc., 169 Fed. Appx. 913, 916 (5th Cir.
2006).

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