     Case: 13-20215      Document: 00512584845         Page: 1    Date Filed: 04/03/2014




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

                                    No. 13-20215                               FILED
                                  Summary Calendar                          April 3, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
MARIA ALMA VILLARREAL,

                                                 Plaintiff-Appellant,
v.

THE TEXAS A&M SYSTEM,

                                                 Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-433


Before STEWART, Chief Judge, and JOLLY and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Maria Alma Villarreal (“Villarreal”) appeals the
district court’s summary judgment in favor of The Texas A&M System (“Texas
A&M”) in an employment discrimination law suit alleging that Texas A&M
wrongfully terminated her. For the reasons explained herein, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. FACTUAL AND PROCEDURAL BACKGROUND
        The Texas A&M University System is a statewide network of eleven
universities, seven state agencies, and a comprehensive health science center.
Villarreal is a Mexican-born United States citizen who began her career at
Texas A&M in 1992 as a staff assistant in the Office of Community
Development (“OCD”). In 2003, the OCD was completely eliminated as a result
of a Reduction-In-Force (“RIF”).      As a result, Villarreal and other OCD
employees were terminated. Shortly thereafter, Texas A&M created a position
entitled Equal Employment Coordinator (“EOC”) to absorb some of the
responsibilities formerly held by the OCD.        The duties attendant to this
position largely consisted of providing administrative support to the director of
Texas A&M’s Office of Equal Opportunity (“OEO”).            Texas A&M offered
Villarreal this position; she accepted it and began working on September 1,
2003.
        Between 2003 and 2009, Texas A&M implemented numerous system-
wide modifications to its administrative scheme. As a result, many of the tasks
that were initially performed by Villarreal as EOC were eliminated.            For
example, in 2006, Texas A&M centralized certain features of its financial
operations in a new department called the System Office of Budgets and
Accounting. Prior to the centralization, Villarreal was responsible for fiscal
and budgetary tasks in the OEO. Subsequent to the creation of the System
Office of Budget       and Accounting,      Villarreal’s fiscal and budgetary
responsibilities decreased significantly.        Furthermore, in 2007, other
administrative tasks that were originally performed by Villarreal were
reassigned to a staff assistant for logistical reasons.
        In light of these changes, Texas A&M performed a “job analysis” in 2009
to evaluate the scope and utility of Villarreal’s position. The analysis revealed
that Villarreal only spent an average of eight hours per week performing
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required job duties. As a result, the Chancellor’s Chief of Staff requested a RIF
that resulted in the elimination of Villarreal’s position.           The Chancellor
approved the RIF, citing the significant changes in Villarreal’s job
responsibilities. On January 13, 2010, Texas A&M informed Villarreal that
her position would be eliminated and that her final date of employment was
March 14, 2010. 1
      As permitted by Texas A&M’s employment policies, Villarreal appealed
her termination on the grounds that she was unlawfully discharged because of
her disability, age, race, gender, and national origin. Texas A&M denied the
appeal.    Villarreal then filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”). The EEOC investigated the complaint
and was unable to conclude that the facts established violations of relevant
employment laws.       Accordingly, the EEOC dismissed the complaint and
provided Villarreal with notice of her right to sue in federal court.
      Villarreal then filed a federal law suit alleging that Texas A&M
terminated her because of her age, disability, and national origin. Texas A&M
moved to dismiss the age and disability claims and the district court granted
the motion. Texas A&M then moved for summary judgment on the national
origin claim, arguing that: (1) Villarreal failed to present sufficient evidence
from which a reasonable fact finder could conclude that Texas A&M unlawfully
discriminated against her with respect to its RIF; (2) Villarreal failed to
establish a prima facie case of discrimination because she was unable to
demonstrate that she was qualified for another position at the time of her
discharge; and (3) the RIF was based upon legitimate non-discriminatory
reasons. The district court agreed and entered summary judgment in Texas



      1 On May 3, 2010, Texas A&M hired Villarreal as a custodial supervisor—a position
she maintained throughout this litigation.
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A&M’s favor. The only matter before this court is Villarreal’s challenge to the
district court’s summary judgment in favor of Texas A&M on her claim of
national origin discrimination.
                              II. DISCUSSION
      A.    Standard of Review
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court. Terrebonne Parish Sch. Bd.
v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002) (citation omitted).
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “Although we consider the evidence
and all reasonable inferences to be drawn therefrom in the light most favorable
to the nonmovant, the nonmoving party may not rest on the mere allegations
or denials of its pleadings, but must respond by setting forth specific facts
indicating a genuine issue for trial.” Goodson v. City of Corpus Christi, 202
F.3d 730, 735 (5th Cir. 2000) (citations and internal quotation marks omitted).
“[C]onclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010).
      B.    Applicable Law
      Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment on the basis of, inter alia, national origin. 42 U.S.C. § 2000e. To
establish a prima facie case of intentional discrimination in the RIF context, a
plaintiff must establish the following elements: (1) she is a member of a
protected class; (2) she was adversely affected by her employer’s decision; (3)
she was qualified to assume another position at the time of her termination;
and (4) there is sufficient evidence from which a fact finder may reasonably


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conclude that the employer intended to discriminate against her. Nichols v.
Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).
      If the plaintiff establishes a prima facie case, the burden shifts to the
employer to assert a legitimate non-discriminatory reason for the employment
action. Id. If the employer posits a legitimate non-discriminatory reason for
its employment action, then the plaintiff has an opportunity to demonstrate
that there is an issue of fact as to whether the defendant’s stated reasons are
pretextual or that the reasons, while true, are part of a mixed-motive that
includes unlawful discrimination. See Roberson v. Alltel Info. Servs., 373 F.3d
647, 651 (5th Cir. 2004).
      C.      Analysis
      “The ultimate question in every employment discrimination case . . . is
whether the plaintiff was the victim of intentional discrimination.” Reeves v.
Sanderson Plumbing Prods, Inc., 530 U.S. 133, 153 (2000). This case is no
different. To answer this question, we must first determine whether Villarreal
has established a prima facie case of discrimination based upon her national
origin.     The first two elements of the analysis are undisputed. Villarreal
sufficiently established that she is a member of a protected class and was
adversely affected by her employer’s decision.      We discuss the remaining
elements in turn.
      The third element of a prima facie case queries whether the aggrieved
employee was qualified to assume another position at the time of her
termination. Villarreal argues that her ability to serve as EEO Coordinator
for seven years demonstrates that she was qualified for other positions at
Texas A&M such as “staff assistant” and “administrative assistant.”           We
disagree.     There is no information in the record with respect to the
qualifications necessary to obtain these positions. Villarreal urges the court to
infer that because she worked in an administrative capacity in one office, she
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was qualified to work in an administrative capacity at any office within the
entire Texas A&M System. Granted, we are required to draw all reasonable
inferences in the light most favorable to Villarreal. However, we are not
convinced that the inference she proffers is reasonable. As stated previously,
the Texas A&M University System is a statewide network of eleven
universities, seven state agencies, and a comprehensive health science center.
We do not believe it is reasonable to assume that every staff assistant position
or every administrative assistant position throughout the system requires the
same skills and proficiencies.        The record is devoid of any evidence
demonstrating that Villarreal met the objective qualifications for these
positions. Therefore, we conclude that she fails to satisfy this element of a
prima facie case of discrimination.
      We also conclude that Villarreal failed to satisfy the final element of a
prima facie case, that is, that Texas A&M intended to discriminate against her
based upon her national origin. Beyond Villarreal’s conclusory allegation that
she was terminated because of her Mexican heritage, the record is devoid of
any factual information demonstrating Texas A&M’s discriminatory intent.
Therefore, we conclude that Villarreal failed to satisfy this element of a prima
facie case as well.
      We note that even if we concluded that Villarreal established a prima
facie case of discrimination, Texas A&M provided a legitimate non-
discriminatory reason for its RIF. After performing its job analysis, Texas
A&M concluded that Villarreal’s job responsibilities only required eight hours
of work per week.     The record demonstrates that similar analyses were
performed in the past at Texas A&M and numerous other employees, of
varying national origins, were terminated by way of a RIF. We have stated
that a RIF is a legitimate non-discriminatory reason to relieve an individual of
their employment. See E.E.O.C. v. Tex. Instruments Inc., 100 F.3d 1173, 1181
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(5th Cir. 1996). There is no information in the record that creates a fact issue
as to whether the RIF was a pretext for Texas A&M’s efforts to discriminate
against Villarreal based upon her national origin.
      “Summary judgment is proper ‘where a party fails to establish the
existence of an element essential to h[er] case and on which [s]he bears the
burden of proof.’” Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990)
(citing Washington v. Armstrong World Indus., 839 F.2d 1121, 1122 (5th Cir.
1988). Villarreal failed to establish two elements essential to her case. Texas
A&M also provided a legitimate non-discriminatory reason for its decision to
terminate Villarreal. Accordingly, we conclude that the district court properly
entered judgment in favor of Texas A&M on Villarreal’s claim of discrimination
based upon national origin.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s summary
judgment in favor of Texas A&M.




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