     Case: 10-50456 Document: 00511365556 Page: 1 Date Filed: 01/28/2011




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

                                                 FILED
                                                                          January 28, 2011
                                     No. 10-50456
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk



HERMELINDA GARZA,

                                                   Plaintiff-Appellant
v.

NORTH EAST INDEPENDENT SCHOOL DISTRICT,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                  (5:09-CV-274)




Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Hermlinda Garza (“Garza”), pro se, appeals the district
court’s order granting summary judgment in favor of Defendants-Appellees
North East Independent School District (“School District”), et al. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-50456

                                         I.
      Garza was once employed as a substitute teacher with the School District.
Her employment with the School District was at-will, and terminated after two
separate incidents of misconduct, at separate campuses following complaints by
two principals, unrelated to one another. In October 2007, at Olmos Elementary
School in San Antonio, Garza was removed from the list of eligible substitute
teachers after a public and unsubstantiated confrontation with the assistant
principal at that school, which Garza initiated. In December 2007, Garza was
removed from the list of eligible substitute teachers at Colonial Hills Elementary
School, also in San Antonio, after the principal there learned Garza captured
pictures of students on her cell phone without the permission of the children’s
parents, and in contravention of the School District’s policy prohibiting the use
of cell phones by substitutes. The principal at Colonial Hills, too, requested that
Garza’s name be removed from the list of substitute teachers. Subsequent and
pursuant to these complaints, the School District terminated Garza’s
employment.
      In July 2008, Garza filed a complaint alleging retaliation and
discrimination before the Equal Employment Opportunity Commission
(“EEOC”). Specifically, Garza alleged that the School District terminated her
employment because she is from Mexico. Garza also alleged that the School
District retaliated against her for filing a charge of discrimination with the
EEOC. In December 2008, the EEOC dismissed the complaint and notified
Garza of her right to file a civil complaint in federal district court, which she did
in May 2009. After certain individual defendants were dismissed, the matter
proceeded against the School District. After extensive discovery and procedural
wrangling, in February 2010, the School District moved for summary judgment.
The Magistrate Judge issued a Report and Recommendation recommending the
grant of the School District’s motion. On May 6, 2010, the district court accepted

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the Report and Recommendation and entered summary judgment in favor of the
School District. Garza timely appealed.


                                        II.
                                        A.
      This court reviews the grant of summary judgment de novo. Floyd v.
Amite Cnty. Sch. Dist., 581 F.3d 244, 247 (5th Cir. 2009). Summary judgment
is appropriate where, considering all the allegations in the pleadings,
depositions, admissions, answers to interrogatories, and affidavits, and drawing
inferences in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. F ED. R. C IV. P. 56(a). Having established the standard of
review, we proceed to discuss Garza’s claims.
                                        B.
      Discrimination in the workplace based on national origin is prohibited by
Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e–2(a)(1) (It is
unlawful “to discriminate against any individual with respect to compensation,
terms, conditions, privileges or employment, based on such individual’s . . .
national origin.”). In the absence of direct discrimination, as is the case here, in
order for Garza’s matter to proceed, she must establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007)
(internal citation omitted). To establish a prima facie case of discrimination,
Garza must show she: (1) is a member of a protected class; (2) was qualified for
her position; (3) was subjected to an adverse employment action; and (4) was
replaced by someone outside the protected class. Id.
      Here, the record demonstrates that Garza fails to meet her burden of
production, let alone her burden of persuasion. For the purposes of this analysis,

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we assume that Garza satisfies the first three prongs of the Turner framework:
that she can be classified as a member of a protected class, that she was
qualified to be a substitute teacher, and that her termination was an adverse
employment action. However, Garza cannot prove that she was replaced by
someone outside the protected class, namely someone not of Mexican origin.
Moreover, her argument that she was the victim of discrimination based on
national origin is nothing more than a subjective belief—she provides no facts
to reinforce her belief. Thus, she has failed to meet her burden of production, as
well as her burden of persuasion.
      Even if Garza could fulfill all four factors of the Turner framework, and
thus, establish a presumption of discrimination, the burden would then shift to
the School District to rebut the presumption by “articulating a legitimate,
nondiscriminatory reason for the adverse employment action.” Id. Here, the
School District could rebut such a presumption. The record shows that both
schools had independent, legitimate reasons for abandoning their use of Garza
as a substitute teacher, based on Garza’s professional behavior. Thus, even if
Garza had satisfied her burden of production, and the duty shifted to the School
District to rebut the presumption, the School District successfully rebutted the
presumption.     Because Garza cannot raise a genuine issue of material fact
regarding the School District’s reasons for the termination, let alone meet her
burden of production, the School District was entitled to summary judgment on
all issues concerning Garza’s national origin discrimination claim, and the
district court did not err.
                                       C.
      Garza’s alternate claim against the School District is for retaliation.
Garza alleges that her termination was in fact retaliation for filing a charge of
discrimination with the EEOC. In order to establish a prima facie case of
discrimination, Garza must demonstrate that (1) she engaged in activity

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                                  No. 10-50456

protected by Title VII; (2) an adverse employment action occurred; and (3) a
causal link existed between the protected activity and the adverse action. Long
v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).
      Here, Garza’s complaint with the EEOC suffices as protected activity. 42
U.S.C.A § 2000e-3(a). Her termination is clearly an adverse action, and satisfies
the second prong of the Long framework for establishing a prima facie case of
retaliation. The third prong requires a link between the two. On this element,
Garza cannot satisfy her burden of production. While it is true that she was
terminated from the School District and filed a complaint with the EEOC, her
termination preceded her complaint with the EEOC. The record reveals that
Garza did not approach the EEOC with her complaint until more than six
months after her termination from Colonial Hills Elementary School. Thus,
there can be no causal link between the two as the complaint had not yet
occurred at the time of her termination. As such, her claim for retaliation cannot
proceed, and summary judgment in favor of the School District was proper on
these grounds. Furthermore, Garza’s motion for the appointment of counsel to
handle the instant appeal is DENIED.
                                       III.
      For the reasons stated above, the judgment of the district court is
AFFIRMED.




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