      Case: 10-20677 Document: 00511390938 Page: 1 Date Filed: 02/23/2011




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

                                                  FILED
                                                                                   February 23, 2011

                                          No. 10-20677                                Lyle W. Cayce
                                        Summary Calendar                                   Clerk



OSCAR AVINA,

                                                         Plaintiff - Appellant
v.

JP MORGAN CHASE BANK, N.A.,

                                                         Defendant - Appellee




                      Appeal from the United States District Court
                           for the Southern District of Texas
                               USDC No. 4:08-CV-1885


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Oscar Avina (“Avina”) appeals the district court’s decision
granting JP Morgan Chase Bank, N.A.’s (“Chase”) motion for summary
judgment on Avina’s claims that Chase unlawfully discriminated against him
based on sex and disability.1              Avina argues that the district court erred in


        *
          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 R. 47.5, the court has determined that this opinion should not be published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
          Avina also alleged that Chase discriminated against him based on age and national origin,
retaliated against him for filing a charge with the Equal Employment Opportunity Commission
(“EEOC”), and violated the Employee Retirement Income Security Act of 1974 (“ERISA”), codified at
29 U.S.C. § 1001 et seq. Avina did not appeal the dismissal his ERISA claims and, as discussed below,
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                                            No. 10-20677

finding that he failed to set out a prima facie case of sex discrimination and that
even if he did set out a prima facie case, Avina could not raise a fact issue
showing that Chase’s legitimate, non-discriminatory reasons for terminating him
were a pretext for unlawful discrimination. For the reasons set forth below, we
conclude that the district court’s judgment must be AFFIRMED.
                     I. FACTS AND PROCEDURAL HISTORY
        Chase hired Avina in 1990, and Avina worked for Chase without incident
until 2004, when he began working as a commercial loan operator in the
Commercial Loan Services (“CLS”) department.                         Avina was the only male
employee out of ten commercial loan operators in the CLS department, and Alma
Trujillo (“Trujillo”) was his supervisor. According to Avina, Trujillo harassed
him and treated him differently from the other female employees. His complaint
alleged that Trujillo was “more rude, mean, distant, and unprofessional” in her
interactions with him than in her interactions with his female co-workers. For
example, she allegedly failed to provide him with the same kind of training that
she provided for the female employees; she gave him more onerous work
assignments; and she would not allow him to leave work to attend college classes
unless he “finished his work,” despite the fact that she allowed another female
employee to leave work to attend college classes.
        In his deposition, however, Avina admitted that he was never disciplined
or issued a written warning for his job performance. Additionally, he did not
know whether the female employees had more onerous work assignments that
he did, and he did not know whether one of his female co-workers was required



waived any arguments he may have had on his age, national origin, and retaliation claims by failing to
brief them.

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                                   No. 10-20677

to finish her work before leaving to attend college classes. Finally, when asked
why Trujillo treated him differently from other employees, Avina answered that
he did not know. Avina complained to management several times about the way
Trujillo treated him, and he alleged that management did nothing to remedy the
situation.
      In October 2006, Chase eliminated all of the positions within the CLS
department, and several female employees within the group lost their jobs;
however, Avina retained his job and moved to the Special Credits department.
Avina’s supervisor in this department was Rosemary Everitt (“Everitt”). Avina
alleged that the discriminatory treatment continued under Everitt’s supervision.
Specifically, she allegedly refused to specify what his responsibilities were in his
new position, yelled at Avina for failing to process orders after she told him not
to process them, and kept a file documenting his mistakes. Avina admitted that
although Everitt documented his mistakes in a file, she kept a similar file on a
female employee.      Avina also reported Everitt’s alleged harassment to
management, but he continued to feel as though Everitt treated him differently.
      On December 1, 2006, Avina left work for medical reasons and did not
return. He experienced chest pains and shoulder pain allegedly resulting from
stress about how he was treated at work, and his doctor diagnosed him with
depression and panic disorder. After visiting the doctor, Avina applied for short-
term disability benefits and requested leave under the Family and Medical
Leave Act (“FMLA”). Chase granted his FMLA request but denied the short-
term disability request, indicating that Avina failed to provide sufficient medical
information concerning his treatment to support a finding that he was unable
to work.     Avina’s doctor indicated that he could return to work on


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February 5, 2007.
        Chase contacted Avina prior to February 4, 2007 to discuss when Avina
would return to his job. After Avina indicated that he would not return, Chase
sent him a letter stating that his employment would be terminated on February
27, 2007 unless he returned to work. Avina did not do so, and Chase terminated
his employment on February 27, 2007.
        Avina filed a charge with the EEOC on February 5, 2007, alleging that
Trujillo treated him differently from his female co-workers and that the verbal
harassment continued under his new supervisor (Everitt) after he changed
departments. The charge alleged that he had “been discriminated against
because of [his] sex, male, and subjected to retaliation in violation of Title VII of
the Civil Rights Act of 1964, as amended.” On April 11, 2007, he amended his
charge to include “allegations of discrimination based on my disability,” but the
charge stated that the discrimination arose under Title VII of the Civil Rights
Act of 1964, as amended, codified at 42 U.S.C. § 2000e et seq. (“Title VII”).2
        Avina filed suit in federal district court on June 12, 2008, alleging
violations of Title VII and ERISA.3                       His complaint alleged that Chase
discriminated against him on the basis of national origin, sex, age, and
disability.4 The district court granted Chase’s motion for summary judgment on


        2
          As the district court properly noted, discrimination based on a disability is not actionable under
Title VII. See Washburn v. Harvey, 504 F.3d 505, 509 (5th Cir. 2007).
        3
         On appeal, Avina mentions the Americans with Disabilities Act of 1990 (“ADA”); however,
Avina did not bring a claim under the ADA before the district court.
        4
         As described above, Title VII does not prohibit discrimination because of a disability. See
supra footnote 2. Additionally, Title VII does not prohibit age discrimination. See Jefferies v. Harris
Cnty. Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980) (noting that “Title VII provides a remedy
against employment discrimination on the basis of an employee’s ‘race, color, religion, sex, or national

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all of Avina’s claims on September 3, 2010 and entered final judgment the same
day. Avina timely appealed.
              II. STANDARD OF REVIEW AND JURISDICTION
        The district court had jurisdiction over Avina’s Title VII employment
discrimination claims pursuant to 28 U.S.C. § 1331. This court has jurisdiction
to review the final judgment entered by the district court under 28 U.S.C.
§ 1291.
        We review decisions granting summary judgment de novo, applying the
same standard as the district court. See Triple Tee Golf, Inc. v. Nike, Inc., 485
F.3d 253, 261 (5th Cir. 2007). Summary judgment is appropriate if the moving
party can show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a).5 We
must view all evidence in a light most favorable to the non-movant. Triple Tee
Golf, Inc., 485 F.3d at 261. However, in arguing that a genuine issue of material
fact exists that precludes summary judgment, the non-movant must identify
specific evidence in the record to support its position. Forsyth v. Barr, 19 F.3d
1527, 1533 (5th Cir. 1994). The non-movant cannot preclude summary judgment
by raising “some metaphysical doubt as to the material facts, conclusory
allegations, unsubstantiated assertions, or by only a scintilla of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal citations and



origin’” (emphasis added)). The district court dismissed Avina’s age and disability discrimination claims
because they were not covered by Title VII, and he failed to raise claims under the proper statutes. Avina
did not appeal this conclusion.
        5
         Effective December 1, 2010, Federal Rule of Civil Procedure 56 has been amended, and the
summary judgment standard is now reflected in Rule 56(a). The amended Rule 56 contains no
substantive change to the summary judgment standard. Therefore, we cite to the amended rule.

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quotation marks omitted).
                               III. DISCUSSION
      Avina appeals the dismissal of his case under both Title VII and the ADA.
We need not address his claims under the ADA, however, because Avina failed
to plead or argue his ADA claim before the district court. We therefore conclude
that he waived any argument based on the ADA. See Spotts v. United States,
613 F.3d 559, 569 (5th Cir. 2010) (“By failing to plead or otherwise [make an
argument] to the district court . . . , the plaintiffs have waived this contention on
appeal.”); LeMaire v. Louisiana, 480 F.3d 383, 387 (5th Cir. 2007) (“[A]rguments
not raised before the district court are waived and cannot be raised for the first
time on appeal.”).
      Avina also alleges that the district court erred in granting summary
judgment to Chase on his Title VII claims. However, the only Title VII issue
Avina adequately briefed was his argument that the district court erred in
granting summary judgment on his sex discrimination claim. Aside from briefly
mentioning his retaliation claim and his “other Title VII claims,” Avina makes
no arguments and cites no authority to preserve these claims; therefore, he has
waived them. See Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 926 (5th
Cir. 2008) (“Merely mentioning a claim does not constitute a supported
argument or adequate briefing.”). We address the only issue Avina preserved on
appeal: his claim of sex discrimination.
      We apply the burden-shifting framework set out by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to Title VII cases
alleging discriminatory treatment. See Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252 (1981). The plaintiff has the initial burden to prove a prima


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facie case of discrimination by a preponderance of the evidence. Id. at 252-53.
If the plaintiff succeeds, the burden shifts to the defendant to provide a
legitimate, non-discriminatory reason for the adverse employment action. Id.
at 253. If the defendant can articulate such a reason, the burden shifts back to
the plaintiff to show, by a preponderance of the evidence, that the defendant’s
reasons were merely a pretext for unlawful discrimination. Id. The Supreme
Court cautioned, however, that “[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains
at all times with the plaintiff.” Id.
      To set out a prima facie case, Avina must prove by a preponderance of the
evidence that he: “(1) is a member of a protected class; (2) was qualified for [his]
position; (3) was subject to an adverse employment action; and (4) was replaced
by someone outside the protected class, or, in the case of disparate treatment,
shows that others similarly situated were treated more favorably.” Okoye v.
Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)
(internal quotation marks omitted).
      The district court concluded that Avina failed to make out a prima facie
case for unlawful sex discrimination because his competent summary judgment
evidence could not raise a fact question as to whether he established the third
or fourth elements of his prima facie case. On appeal, Avina summarily argues
that he has a prima facie case for sex discrimination because the evidence shows
that he was “treated significantly and substantially less favorably than
comparably placed female employees in his work group” and was terminated
because of his sex.
      We conclude that the district court properly entered summary judgment


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in favor of Chase because Avina failed to offer competent summary judgment to
raise a fact question as to whether he was replaced by someone outside of the
protected class (in this case, a female), or that members of the protected class
were treated more favorably. See Okoye, 245 F.3d at 512-13. The record is
devoid of evidence that Avina was replaced by a female. Similarly, Avina offered
no evidence that similarly-situated co-workers outside of the protected class
were treated more favorably. For example, in his deposition, Avina admitted
that he did not know whether Trujillo also required female co-workers to
complete their work before leaving the office to attend college classes. He also
admitted that Everitt kept a folder on a female employee similar to the one she
kept about Avina.       Avina stated that he was merely guessing that Everitt
required him to do more work than his female co-workers. Finally, when asked
why he believed that Trujillo treated him differently and whether Avina thought
it was because he was a man, he answered “I don’t know why.” Although his
affidavit states that he was treated differently from his female co-workers in
certain instances, he fails to establish any facts supporting this allegation other
than his own subjective belief.6 We conclude that Avina failed to raise a genuine
issue of material fact concerning the fourth element of his prima facie case.
Consequently, we find that the district court properly granted summary
judgment in favor of Chase on Avina’s Title VII sex discrimination claim.
       Because we hold that Avina failed to establish a prima facie case, we need
not reach Avina’s argument that the district court improperly failed to consider


       6
          To the extent that his affidavit contradicts his deposition testimony, it would not
create a genuine issue of material fact. See S.W.S. Erectors v. Infax, Inc., 72 F.3d 489, 496
(5th Cir. 1996) (concluding that a party could not use an affidavit that contradicted prior
sworn deposition testimony to raise a fact issue).

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his evidence that Chase’s legitimate, non-discriminatory reason for firing Avina
was pretextual. We note, however, that Avina does not present any evidence
that he did return to work. While he stated in his affidavit that Dr. Guerra kept
him out of work, the only evidence from Dr. Guerra stated a return to work date
of February 5, 2007. Thus, no evidence supports his contention that the reason
for his firing was pretextual.
                                 IV. CONCLUSION
      For the reasons set forth above, the district court’s decision granting
summary judgment to Chase on Avina’s sex and disability discrimination claims
is AFFIRMED.




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