                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                             Summary Calendar
                               No. 00-60515


                             SCOTT M. SMITH,

                                                 Plaintiff-Appellant,

                                    versus

                            ALBERTSON’S INC.,

                                                 Defendant-Appellee.


            Appeal from the United States District Court
              for the Southern District of Mississippi
                           3:99-CV-247-BN

                                 March 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

           In   this    racial    discrimination    and   retaliation   case,

Plaintiff-Appellant, Scott M. Smith (hereinafter “Smith”), appeals

from the district court’s grant of summary judgment in favor of his

former employer, Defendant-Appellee Albertson’s, Inc (hereinafter

“Albertson’s”).        Finding that Smith failed to offer competent

summary   judgment      evidence    suggesting     that   Albertson’s   non-



      *
            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opinion should not be published and is not precedent except under the limited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.
discriminatory   reasons       were    pretextual       and,     that     Smith’s

retaliation claim is unsubstantiated, we AFFIRM.

                          FACTS AND PROCEEDINGS

          In September 1997, Smith, an African American, began his

employment as a clerk with Albertson’s grocery chain.               In January

1998, Jeff Smith, the store director, promoted Smith to lobby

supervisor.   It was at this time that Smith’s employment problems

began.   In   June    1998,    Jeff   Smith    issued    Smith    two    written

performance   warnings,     one   pertaining      to    continued       excessive

overtime after he had been advised against it, and the other

involving the untidy and unclean condition of Smith’s department.

As a result of these problems, Jeff Smith eventually demoted Smith

to drug clerk around November 1998.           Due to his demotion, Smith’s

pay was reduced from $9.15 to $8.55 per hour.

          On January 11, 1999, Smith filed a complaint with the

Equal Opportunity Employment Commission (“EEOC”) alleging that his

demotion and pay reduction were based on his race.             On February 26,

1999, finding insufficient evidence to establish a violation, the

EEOC dismissed Smith’s complaint and issued him a right to sue

letter. On March 6, 1999, Smith received his third written warning

notice for missing a scheduled work shift due to car problems.

Finally, on   March   19,     1999,   Smith    was   terminated     because   he

discounted merchandise without management approval.




                                      2
            As a result, Smith filed this lawsuit on April 5, 1999

alleging, inter alia, racial discrimination and retaliation in

violation of Title VII.2       The district court granted Albertson’s

motion for summary judgment and dismissed Smith’s claims.                 Smith

timely filed a notice of appeal.

                             STANDARD OF REVIEW

            This court reviews a district court’s grant of a motion

for summary judgment de novo, employing the same standards as the

district   court.      See   Scrivner       v.   Socorro   Independent   School

District, 169 F.3d 969, 970 (5th Cir. 1999).           Therefore, this court

reviews the record as a whole and will reverse the district court’s

ruling only if the pleadings, depositions, answers to interroga-

tories, admissions on file, and any affidavits establish a genuine

issue of material fact and the moving party is not entitled to

judgment as a matter of law.       See Sreeram v. Louisiana State Univ.

Medical Center, 188 F.3d 314, 318 (5th Cir. 1999); see also,

FED.R.CIV.P. 56(c).     A genuine issue of material fact exists where

a reasonable jury could return a verdict for the nonmoving party

based on the evidence currently before this court. Id.

                  SMITH’S RACIAL DISCRIMINATION CLAIM

            Smith maintains that Albertson’s discriminated against

him on the basis of race in demoting him, reducing his wage rate,


      2
            Smith originally asserted claims for harassment and intentional and
negligent infliction of emotional distress under state law.     Smith does not
challenge the district court’s dismissal of these claims on appeal.

                                        3
and ultimately terminating him.3                                Smith’s claims of discrimination

are governed by the tripartite burden-shifting analysis established

in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973).                                                        Under

this analysis, the Smith bears the burden of establishing a prima

facie case of discrimination.                            See Rubinstein v. Administrators of

the Tulane Educational Fund, 218 F.3d 392, 399 (5th Cir. 2000).

Upon such a showing, the burden shifts to Albertson’s to articulate

some legitimate,                  non-discriminatory                   reason        for      the      challenged

employment action. Id.                      If such a showing is made, then the burden

shifts back to Smith to demonstrate that the articulated reason was

merely a pretext to unlawful discrimination. Id.

                  Accordingly, Smith must first establish a prima facie

case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,

120       S.Ct.        2097,         2106        (2000).               Since         Smith’s          claim         for

discrimination is ultimately based on Albertson’s demoting him due

to his race,              Smith must show that: (1) he was within a protected

class; (2) he was qualified for the position sought; (3) he

suffered an adverse employment action; and (4) his position was

filled by someone else.                       See Bennett v. Total Minatome Corp., 138

F.3d 1053, 1060 (5th Cir. 1998).                             In this case, it is undisputed on

appeal that Smith satisfied the prima facie case.




         3
                   After reviewing the record and the briefs, it is not entirely clear whether Smith alleges that his race
played any role in his termination. However, since Smith is proceeding pro se, this court will construe his allegations
and briefs more liberally. See Nerren v. Livingston Police Dept., 86 F.3d 469, 472 (5th Cir. 1996). Accordingly, this
court assumes Smith alleges that race played a role in his termination.

                                                            4
                 The burden then shifted to Albertson’s to articulate a

legitimate, non-discriminatory reason for the challenged employment

action.         See Russell v. McKinney Hospital Venture, 235 F.3d 219,

222 (5th Cir. 2000).                     Albertson’s states that Smith was demoted

because of poor job performance and terminated because he sold

merchandise at a discount without management approval.                                                     These

reasons are documented in Smith’s personnel file at Albertson’s.

In addition, Albertson’s contends Smith’s decrease in pay was

associated with his demotion and was in accordance with Albertson’s

Mississippi Area Wage Schedule.                           Thus, it is clear from the record

that Albertson’s has met its burden.

                 The      burden        finally         shifted        back       to     Smith       to    offer

evidence sufficient to create a fact issue that Albertson’s reasons

were a pretext for discrimination.                              The summary judgment turns on

the question of pretext.                           See Rubinstein, 218 F.3d at 400.

                 Smith fails the third part of the analysis.                                              In his

attempt to meet this burden, Smith makes the following contentions:

that two former co-workers will testify on his behalf at trial4;

that he had authorization to sell the merchandise at a discount5;

that Jeff Smith is a liar and a racist; that he was demoted because


        4
                 Specifically, Smith contends that Joan Creel’s testimony will directly contradict several of
Defendant’s interrogatories, but offers nothing more in support of this contention.
        5
                   He asserts that he and Bill Derouen, Drug Manager, discussed ways of improving gross profit in his
department and that he suggested that they sell damaged merchandise at half-price rather than throwing the
merchandise away. Albertson’s acknowledges the conversation took place, but denies that Smith was ever given
permission to mark down the prices of diapers. Other than asserting he had permission, Smith offers nothing more
in support of this contention.

                                                         5
the store director wanted to put his white former classmate in

Smith’s position; and that he was not demoted and terminated for

legitimate nondiscriminatory reasons because his personnel file

lacked    documentation       regarding       the   reasons    for   these   adverse

actions.

            Smith    however     does   not     offer    any   competent     summary

judgment evidence in support of these contentions. Smith offers no

affidavit testimony from any co-worker in support of any of his

contentions.      In addition to being hearsay, the only declaration

Smith produced fails to support any of Smith’s contentions.6                      As

previously    noted,    the    record     contains      documentation    regarding

Smith’s termination.7         Apart from bald assertions, Smith offers no

competent evidence sufficient to withstand summary judgment.                     See

Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995)

(bald assertions of discrimination are inadequate to permit a

finding    that     proscribed    discrimination         motivated     defendant’s

actions against plaintiff); see also, Little v. Republic Refining

Co., Ltd., 924 F.2d 93, 96 (5th Cir. 1991) (subjective belief of

discrimination cannot be basis of judicial relief).                    Speculation



      6
            Smith produced the declaration of Tracy Miller.       Miller, who is
white, stated that he was not terminated after marking down the price of milk
after he was authorized to do so. This court fails to see the significance of
Miller’s declaration. As the district court noted, Miller unquestionably had the
authority to mark down the milk, while Albertson’s alleges that Smith had no such
authority.
      7
            Smith himself produced a copy of written notice of his termination
in his complaint as Exhibit “X” which states the reason for his termination was
his marking down the price of merchandise without approval. (R. at 54).

                                          6
and belief are insufficient to create a fact issue as to pretext.

See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (5th

Cir. 1996) (en banc) (“...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[.]”).

                        SMITH’S RETALIATION CLAIM

           Smith also has failed to support a cause of action for

retaliation.     To establish a prima facie claim of retaliation,

Smith must show: (1) that he engaged in activity protected by Title

VII; (2) that an adverse employment action occurred; and (3) that

a causal link existed between his participation in the protected

activity and     the   adverse   employment   action.    See   Casarez   v.

Burlington Northern/Santa Fe Co., 193 F.3d 334, 338-39 (5th Cir.

1999). Ultimately, Smith must show that Albertson’s would not have

terminated him “but for” Smith’s filing a complaint with the EEOC.

See Scrivner, 169 F.3d at 972.

           On January 11, 1999, Smith filed a complaint with the

EEOC alleging that his demotion and accompanying pay reduction were

the result of race discrimination.       On March 19, 1999, Albertson’s

terminated Smith for selling merchandise at a discount without

authorization.     Other than self-serving statements and unsub-

stantiated assertions, Smith offers no admissible evidence of any

causal link between his termination and his filing a complaint with



                                     7
the EEOC.8      The party opposing summary judgment must present

supporting evidence and/or testimony, or suffer dismissal of the

case.     As previously noted, mere “conclusory allegations, specula-

tion, and unsubstantiated assertions are inadequate to satisfy the

nonmovant’s burden.” Douglass, 79 F.3d at 1430.           Smith’s own self-

serving statements of subjective belief of discrimination are

insufficient to support his burden. See Grizzle v. Travelers Health

Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994).

                                 CONCLUSION

             Smith failed to present sufficient evidence from which a

reasonable jury could infer discrimination and his claim of illegal

retaliation is unsupported. Accordingly, summary judgment in favor

of Albertson’s is AFFIRMED.




      8
            Again, Smith only produces statements of witnesses who will testify
at trial, but offers nothing more.

                                      8
