     Case: 10-11033 Document: 00511502410 Page: 1 Date Filed: 06/08/2011




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

                                                 FILED
                                                                             June 8, 2011

                                     No. 10-11033                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



LUCRETIA S. JOHNSON,

                                                   Plaintiff-Appellant
v.

UAH PROPERTY MANAGEMENT, LIMITED PARTNERSHIP,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:09-CV-609


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Lucretia S. Johnson appeals the district court’s order granting summary
judgment in favor of her former employer, UAH Property Management, on her
claims of race and age discrimination. Applying de novo review, see Jackson v.
Watkins, 619 F.3d 463, 465 (5th Cir. 2010), we AFFIRM.
       UAH offered evidence in the form of declarations and emails supporting
its assertion that Johnson’s termination was based on poor performance.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-11033 Document: 00511502410 Page: 2 Date Filed: 06/08/2011



                                 No. 10-11033

Johnson attacks the competency of this evidence, but it is reasonably inferred
that the facts averred therein were based on the declarants’ personal knowledge
and participation in the events at issue; therefore, the evidence was competent.
See DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005).
      Johnson, an African-American woman, was 42 when UAH hired her. She
was terminated after only three months on the job. Johnson contends that she
presented a prima facie case of both race and age discrimination because she
was replaced by a younger African-American woman, who in turn was replaced
by an older Caucasian woman, who was then transferred and replaced by a
younger Caucasian woman.       She asserts that she was treated disparately
because the Caucasian woman was transferred rather than terminated.
      Johnson does not address the district court’s finding that her evidence
about the Caucasian woman’s transfer was incompetent summary judgment
evidence and would not be considered because it contradicted prior sworn
testimony. Any argument that this evidence should be considered is therefore
abandoned, see Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987), leaving no prima facie case of race discrimination.
Furthermore, even if we were to consider the evidence we agree with the district
court that because Johnson makes no showing that the Caucasian woman was
similarly situated, and indeed cites no evidence concerning the circumstances of
the alleged transfer, she fails to show disparate treatment based on race. See
Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514–15 (5th Cir.
2001).
      With respect to age discrimination, Johnson asserts various reasons as to
why UAH’s claim that it terminated her based on performance was pretextual,
including the fact that UAH was having cash flow problems; UAH did not
investigate prior to terminating her and violated its own policies; UAH relied
upon her to handle matters during a murder investigation at the property; and

                                       2
    Case: 10-11033 Document: 00511502410 Page: 3 Date Filed: 06/08/2011



                                  No. 10-11033

she denied that she ignored instructions or failed to meet performance
expectations. Johnson’s assertions are largely conclusory and speculative, and
she fails to show a fact issue as to whether age was the but-for cause of the
employment decision. See Jackson v. Cal-Western Packaging Corp., 602 F.3d
374, 377 (5th Cir. 2010). She asserts that her own opinion is sufficient to refute
UAH’s claims, but a plaintiff’s own subjective belief is insufficient to show
discrimination based on age. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d
144, 152 (5th Cir. 1995). Having reviewed the record evidence, we conclude that
Johnson fails to show UAH’s explanation for her termination was false or
unworthy of belief. See Jackson, 602 F.3d at 378–79.
      AFFIRMED.




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