     Case: 13-10154       Document: 00512379895         Page: 1     Date Filed: 09/19/2013




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

                                                                            FILED
                                                                        September 19, 2013
                                     No. 13-10154
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk


VIRGINIA C. RODRIQUEZ,

               Plaintiff - Appellant

v.

WAL-MART STORES, INCORPORATED, doing business as Sam's Club,

               Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2129



Before JONES, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Virginia C. Rodriquez (“Rodriquez”) filed suit against her former employer,
Wal-Mart Stores, Inc., d/b/a Sam’s Club (“Sam’s Club”), for discrimination based
on age and national origin, and retaliation under the Texas Commission on
Human Rights Act (“TCHRA”). The district court granted summary judgment
in favor of Sam’s Club. We affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                       I. FACTS AND PROCEEDINGS
      Virginia Rodriquez is a woman of Mexican descent over the age of forty.
Rodriquez began working for Sam’s Club in 1991 as an hourly associate in its
Temple, TX store. Sam’s Club promoted Rodriquez several times during her
years with the company. In 2008, after Rodriquez had served approximately one
year as assistant manager at the Temple location, the store manager, Jody Reed
(“Reed”), promoted her to Operations Manager. Rodriquez was forty-five years
old at the time.
      Two separate violations of company policies led to Rodriquez’s termination
in July 2010. In 2009, Rodriquez violated Sam’s Club’s Associate Purchase
Policy (“AP Policy”). The AP Policy, inter alia, governs the sale of Sam’s Club
products to managers and associates. It states that a manager cannot authorize
or reduce the price of an item she intends to purchase. Similarly, the AP Policy
prohibits a manager or associate from using “Code 2” to override an item
transaction and establish a new price.
      On October 8, 2009, Rodriquez decided to purchase perfume at the
discounted priced of $37. An associate scanned the perfume, but the register did
not find the perfume or its price. Rodriquez then instructed an associate,
Genevieve Luna (“Luna”), to use the Code 2 override and price the perfume at
$20. Rodriquez also marked down another perfume for Luna to purchase.
Another employee witnessed and reported Rodriquez’s behavior.             After an
investigation, Rodriquez admitted wrongdoing and accepted responsibility for
the violation of AP Policy. Rodriquez wrote after the incident: “I know this is a
serious incident and I am fully responsible [for] taking the mark down on the
perfume and telling the associate to ring it Code 2.”
      Sam’s Club maintains a Coaching for Improvement Policy (“Coaching
Policy”) to handle disciplinary issues. The Coaching Policy separates discipline
into four levels of severity. The levels of discipline are: (1) Verbal Coaching; (2)
Written Coaching; (3) Decision Day; and (4) Termination. A “Decision Day” is

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the highest level of discipline short of termination. Each disciplinary level
remains active for one year after the employee’s infraction. Furthermore, the
Coaching Policy classifies certain behavior as “Gross Misconduct” that justifies
immediate termination.
        The Human Resource Manager, Byron Lindemann, and his supervisor
recommended that Sam’s Club terminate Rodriquez for the violation. However,
Reed advocated for Rodriquez to receive a second chance in light of her nearly
twenty years at the company. As a result, Rodriquez received a Decision Day
instead of termination. Sam’s Club instructed her that another violation would
result in termination.
        The second violation of company policy occurred in July 2010. Loria
Robertson (“Robertson”), a Sam’s Club employee, hosted a party on July 4, 2010.
Two Sam’s Club cashiers called in sick to attend. Robertson posted photographs
of the cashiers two days later on her Facebook page. Rodriquez viewed the party
photographs and posted a comment on Facebook.
        The Wal-Mart Social Media Policy prohibits any conduct that adversely
affects job performance or other associates. While the Social Media Policy allows
employees to post complaints online, the comments cannot appear
“unprofessional, insulting, embarrassing, untrue, [or] harmful.”
        On July 6, 2010, Rodriquez publicly commented on Robertson’s Facebook
page:
        I hear that Caleb didn’t show up for work on this day what’s up with
        that???? He is partying with you guys?? WOW and Carrie tried to
        call in for him and knew about this . . . you guys are amazing and
        bold enough to post these [pictures] hahahahaha.

Rodriquez realized “the severity” of her comment and deleted it the same day.
Nevertheless, Robertson complained to Sam’s Club that Rodriquez posted the
comment. Because Reed–manager of the Temple location–was on vacation, the
Market Human Resource Manager, Lisa Richards (“Richards”), investigated the


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complaint.
      Richards concluded that the comment violated the Social Media Policy and
determined that Rodriquez exhausted her disciplinary steps under the Coaching
Policy and should be terminated. Richards waited until Reed returned from
vacation and then terminated Rodriquez’s employment. A thirty-nine year old
Caucasian woman replaced her.
      After her termination, Rodriquez filed a charge with the Texas Workforce
Commission Civil Rights Division (“TWC”) and the Equal Employment
Opportunity Commission alleging retaliation and discrimination on the basis of
age and national origin. The TWC dismissed, and Rodriquez brought the
current action. The district court granted Sam’s Club’s motion for summary
judgment on each claim and dismissed the suit. Specifically, the district court
dismissed the discrimination claims because Rodriquez failed to show that Sam’s
Club’s legitimate, nondiscriminatory reason for termination was merely a
pretext. The district court dismissed Rodriquez’s retaliation claim because, inter
alia, she did not engage in a protected activity.
                        II. STANDARD OF REVIEW
      We review the grant of summary judgment de novo, applying the same
standards as the district court. Albemarle Corp. v. U.S. Steel Workers ex rel.
AOWU Local 103, 703 F.3d 821, 824 (5th Cir. 2013). Summary judgment is
appropriate when the evidence indicates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Anadarko
Petroleum Corp. v. Williams Alaska Petroleum, Inc., No. 12-20716, 2013 WL
4001507, at *2 (5th Cir. Aug. 6, 2013); FED. R. CIV. P. 56(a).


                              III. DISCUSSION
      On appeal, Rodriquez argues that the district court erred in granting
Sam’s Club’s motion for summary judgment because genuine issues of material
fact remained as to (1) whether the company discriminated based on her age and

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national origin, and (2) whether the company retaliated against her.
A.    Age and National Origin Discrimination
      Rodriquez raised two discrimination claims under the TCHRA. Texas
courts apply analogous federal law to claims under the TCHRA. Wal-Mart
Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003) (per curiam) (“The
Legislature intended to correlate state law with federal law in employment
discrimination cases when it enacted the TCHRA.”). Either direct or
circumstantial evidence can establish a claim of age and national origin
discrimination. Laxton v. Gap, Inc., 333 F.3d 572, 578 (5th Cir. 2003). A
plaintiff that fails to present direct evidence must rely upon the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Turner v. Kan. City S. Ry. Co., 675 F.3d 887, 892 (5th Cir. 2012).
      Initially, the plaintiff must establish a prima facie case of discrimination.
Id. Generally, a prima facie case requires the plaintiff to demonstrate that she
was: (1) discharged; (2) qualified for the position; (3) in a protected class; and (4)
replaced by someone outside the class. Berquist v. Wash. Mut. Bank, 500 F.3d
344, 349 (5th Cir. 2007); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468
(5th Cir. 2002). If a plaintiff establishes a prima facie case of discrimination, the
burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for the employment action. Raggs, 278 F.3d at 468. However, the
framework shifts only the burden of production, not the burden of persuasion.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). The employer need not
persuade the court that the proffered reasons motivated it. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981). Rather, the employer must only
present sufficient evidence to raise a genuine issue of material fact on whether
it discriminated against the plaintiff.       Id.   If the employer presents such
evidence, the burden returns to the plaintiff, who–to survive summary
judgment–must establish that the employer’s reason was either (1) a pretext for
discrimination, or (2) only one of many reasons for the alleged conduct, and that

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discrimination was a “motivating factor.” Rachid v. Jack In The Box, Inc., 376
F.3d 305, 312 (5th Cir. 2004).
      The parties agree that Rodriquez has established a prima facie case of
discrimination. First, Sam’s Club terminated her employment on July 27, 2010.
Second, Rodriquez was qualified for the position of manager because she was an
employee of Sam’s Club for nearly twenty years, with ten of those years in a
managerial position. Third, Rodriquez is in a protected class because she is of
Mexican origin and forty-seven years old. Fourth, an employee that is outside
Rodriquez’s protected class–a thirty-nine year old Caucasian woman–replaced
her. Rodriquez thus satisfies the threshold requirement of presenting a prima
facie case of discrimination.
      Having shifted the burden to the employer, however, the district court
correctly concluded that Sam’s Club articulated a legitimate, nondiscriminatory
reason to terminate Rodriquez. Rodriquez violated the AP Policy when she
overrode the register to reduce the price of a perfume she purchased for herself.
She committed the same violation for the cashier (Luna) that originally scanned
the item. As a result of these violations, Rodriquez received a Decision Day,
which under company policy is the final level of discipline prior to termination.
Less than one year after her violations of AP Policy, Rodriquez made the posting
on Robertson’s Facebook page, which Richards determined violated Sam’s Club’s
Social Media Policy. Because Rodriquez was on active Decision Day status for
her previous AP violations and had been warned that any further misconduct
would result in her termination, Richards terminated Rodriquez. Sam’s Club
thus carried its burden to produce a legitimate, nondiscriminatory reason to
terminate Rodriquez, and our inquiry shifts to whether Rodriquez “create[d] a
genuine issue of material fact either (1) that the defendant’s reason is not true,
but is instead a pretext for discrimination . . . or (2) that the defendant’s reason,
while true, is only one of the reasons for its conduct, and another ‘motivating
factor’ is the plaintiff’s protected characteristic.” Id. at 312 (internal marks

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omitted).
      Appellant contends that Sam’s Club’s proffered reason for her termination
was a pretext for discrimination. In order to establish pretext, a plaintiff must
present evidence showing either that she suffered disparate treatment or that
the employer’s proffered reason is false or “unworthy of credence.” Laxton, 333
F.3d at 578.
      Rodriquez fails to establish disparate treatment. To prove disparate
treatment, a plaintiff must demonstrate that the employer gave preferential
treatment to another employee under “nearly identical circumstances.” Lee v.
Kan. City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009). Employees that have
different supervisors, different work responsibilities, or are subjected to adverse
employment actions for dissimilar violations are not nearly identical. Id. at 260.
A nearly identical circumstance exists where the employees have the “same job
or responsibilities, shared the same supervisor or had their employment status
determined by the same person, and have essentially comparable violation
histories.” Id. (footnotes omitted).
      Here, Rodriquez fails to demonstrate that another employee received
preferential treatment under nearly identical circumstances. Rodriquez argues
that Luna and the two cashiers who attended the party received preferential
treatment. Her circumstance was not nearly identical to that of the other
employees, as her job and responsibilities were dissimilar from the other
employees’. Whereas Luna was a Cashier Operations Supervisor and the
associates were cashiers, Rodriquez was the Operations Manager for the entire
store and supervised the store’s financials, budgets, human resources,
compliance, and safety. Also, Rodriquez’s violation was not similar to the other
employees’ actions. Whereas Rodriquez violated the Social Media Policy, the two
cashiers improperly called in sick for work. Assuming, as Rodriquez suggests,
that Luna should have been “disciplined for knowingly attending Robertson’s
July 4th party with two associates that she knew were scheduled to work that

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day,” her error is still entirely different from Rodriquez’s violation of Sam’s
Club’s Social Media Policy. Finally, Rodriquez failed to provide evidence that
the other employees had similar disciplinary histories. She never alleged, for
example, that the other employees were on active Decision Day status.
      She   also   fails   to   demonstrate   that   Sam’s     Club’s   legitimate,
nondiscriminatory reason for her termination is “false or unworthy of credence.”
An explanation is “false or unworthy of credence” if it is not the real reason for
the termination. Laxton, 333 F.3d at 578. Courts do not consider whether the
employer made an erroneous decision. Deines v. Tex. Dep’t of Protective and
Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999); Mayberry v. Vought Aircraft
Co., 55 F.3d 1086, 1091 (5th Cir. 1995). Rather, the employer needs only to
terminate the employee based on a good-faith belief that her activity was
improper. Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993).
      The only proper inquiry, then, is whether the employer made its decision
with a discriminatory motive. Mayberry, 55 F.3d at 1091. An employee’s
subjective belief is insufficient to establish discriminatory motive. Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (“It is more than
well-settled that an employee’s subjective belief that he suffered an adverse
employment action as a result of discrimination, without more, is not enough to
survive a summary judgment motion, in the face of proof showing an adequate
nondiscriminatory reason.”).
      Rodriquez fails to provide sufficient argument or evidence demonstrating
that discriminatory motive–and not her prior disciplinary violations–was the
real reason for her termination. She attempts to establish pretext through
comments made by Reed that disparaged Mexicans and African Americans.
While the oral statements of an employer may be used as evidence of pretext, the
evidentiary value of the statements depends upon their content and the speaker.


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Russell v. McKinney Hosp. Venture, 235 F.3d 219, 225 & n.9 (5th Cir. 2000). A
comment is sufficient evidence of discrimination only if it is: (1) related to the
protected class; (2) proximate in time to the termination; (3) “made by an
individual with authority over the employment decision at issue”; and (4) related
to the termination at issue. Haas v. ADVO Sys., Inc., 168 F.3d 732, 733 (5th Cir.
1999). Finally, “[c]omments that are ‘vague and remote in time’ are insufficient
to establish discrimination.” Id. (quoting Brown v. CSC Logic, Inc., 82 F.3d 651,
655 (5th Cir. 1996)).
      Significantly, the “individual with authority over the employment decision
at issue” is typically the person who executes the termination. Russell, 235 F.3d
at 226. If this person is not the one who made the discriminatory comments, the
employee must demonstrate that the individual that did make the comments
influenced or leveraged his decision. Id. An employer is held liable for another’s
discriminatory comments only if she served merely as a “rubber stamp.” Id. at
226-27.
      Reed’s alleged comments fail to establish pretext. Rodriquez claims that
Reed once stated his sister was going to Mexico “to marry a wetback.” She also
claims that Reed told her “[y]ou know how black people are if they don’t get
there [sic] way,” and that a black employee “would not make it as an outside
salesperson because of the way she talked.” Reed was not “the individual with
authority” over the decision. Richards, rather than Reed, determined that
Rodriquez should be terminated. As Rodriquez acknowledges, it was Richards
who “approached Rodriques [sic] and told her someone had complained about the
post” and who “asked Rodriques [sic] to prepare a written statement about the
post and the underlying circumstances.” Reed was on vacation at the time, and
there is no indication that Richards merely “rubber stamped” any decision by
him to fire Rodriquez.     Rather, Reed’s involvement was limited to calling


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Rodriquez on July 27, 2010 to come into work, leading Rodriquez to Richard’s
office, and meeting with Rodriquez after Richards terminated her. As Rodriquez
notes: “Once Reed and Rodriques’s [sic] were in Richards’s office, Richards
informed Rodriques [sic] that her employment with Wal-Mart was being
terminated for violating Wal-Mart’s Social Media Policy. Reed did not say
anything during the meeting.”               Because the evidence does not support
Rodriquez’s contention that Reed was either the individual with authority over
her termination or somehow influenced Richards’s decision, Reed’s alleged
discriminatory comments do not establish pretext.1
       Appellant also argues that she did not violate the Social Media Policy and,
therefore, Sam’s Club fired her for a discriminatory reason. As the district court
noted, Rodriquez admitted that a second violation of company policy would
subject her to termination, and admitted to the facts that formed the basis of her
Social Media Policy violation.2 Sam’s Club certainly could have concluded that
Rodriquez’s public comment violated its policies. See Waggoner, 987 F.2d. at
1165 (employer required only to demonstrate good-faith belief).
B.     Retaliation Claim
       In addition to her discrimination claims, Rodriquez claims that Sam’s Club
terminated her in retaliation for filing internal complaints. In order to establish


       1
        Even if he were the individual with authority over Rodriquez’s termination, Reed’s
comments would fail to prove pretext because they were neither proximate in time nor related
to her termination. Reed’s comments disparaging African Americans do not involve
Rodriquez’s protected class. The one statement Rodriquez alleges Reed made disparaging
Mexicans was directed at his own brother-in-law and is unrelated to Rodriquez’s termination.
       2
         Rodriquez argues that “[t]he District Court erred in concluding the underlying facts
regarding the violation of the Social Medial Policy were not disputed.” Her objection seems
to center on her contentions that she (1) “would not have made the Facebook post had she
known it was a violation,” and (2) “that she did not think her post was a violation of the Social
Media Policy and that she did not think she had done anything wrong.” Neither contention
contradicts the district court’s finding that Rodriquez “admitted to the facts that form the
basis of the Social Media Policy violation.”

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a prima facie case of retaliation, a plaintiff must prove that: (1) she engaged in
a protected activity; (2) an adverse employment action occurred; and (3) a casual
link exists between the protected activity and the adverse employment action.
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012). “Protected
activities consist of (1) opposing a discriminatory practice; (2) making or filing
a charge; (3) filing a complaint; or (4) testifying, assisting, or participating in any
manner in an investigation, proceeding, or hearing.” Dias v. Goodman Mfg. Co.,
214 S.W.3d 672, 676 (Tex. App.–Houston [14th dist.] 2007, pet. denied). An
employee that files an internal complaint of discrimination engages in a
protected activity. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194 (5th Cir.
2001).
      Rodriquez identifies as protected activities her use of Sam’s Club’s “Open
Door Policy” in February 2003 “to make an internal complaint to Area Manager,
John Bernheim regarding the way Jody Reed treated her” and her use of the
policy again in October 2009 “to make an internal complaint about the gossip
that [took] place at the work place regarding the Decision Day coaching Plaintiff
received on or about October 8, 2009.”
      These internal complaints do not constitute a protected activity. In 2003,
Reed reprimanded Rodriquez for her department’s failure to remove expired
goods from the shelf. Rodriquez then submitted a complaint that Reed “did not
like her” and belittled her. After her AP Policy violation in 2009, Rodriquez
complained that the employer breached her confidentiality when other associates
discovered and discussed her Decision Day. Although Rodriquez is correct that
“[o]pposition to discrimination . . . need not be in formal written form,” her
internal complaints are not protected activities because they did not reference
discrimination or any other unlawful employment activity.
      She also fails to establish the requisite causal link between her internal


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complaints and her eventual termination. As the district court noted, “[t]he first
alleged protected activity occurred in 2003, over seven years before Plaintiff’s
termination.” We agree with the district court’s determination that “[t]he long
amount of time lapsing between the two events falls far short of the temporal
proximity standard.” With respect to the second alleged protected activity–her
October 2009 complaint– Rodriquez likewise fails to establish a causal link to
her termination. She argues that “the temporal proximity between these events
by itself suffices to establish the prima facie case.”                Absent more of an
explanation for how her October 2009 complaint caused her July 2010
termination, the nine-month gap between the two events negates any inference
of a causal link.      Rodriquez thus fails to establish a prima facie case for
retaliation.3


                                  IV. CONCLUSION
       The judgment of the district court is AFFIRMED.




       3
          Even if Rodriquez established a prima facie case of retaliation, her claim would
ultimately fail for the same reasons as her discrimination claims. For the reasons discussed
in § III.A, supra, Rodriquez would not be able to establish that Sam’s Club’s legitimate reason
for her termination was merely pretext for retaliation.

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